Exhibit 10(m)
AGREEMENT OF LEASE
BY AND BETWEEN
NORTHLAND METRO PORTFOLIO LIMITED PARTNERSHIP
(LANDLORD)
AND
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
(TENANT)
INDEX TO LEASE
ARTICLES NUMBER CAPTION
ARTICLE 1 Basic Lease Provisions and Enumeration of Exhibits..............4
ARTICLE 2 Description of Premises and Appurtenant Rights..................6
ARTICLE 3 Rent and Additional Rent........................................8
ARTICLE 4 Landlord's Covenants, Interruptions and Delays.................15
ARTICLE 5 Tenant's Covenants.............................................17
ARTICLE 6 Assignment, Subletting, and Mortgaging.........................22
ARTICLE 7 Casualty and Taking............................................24
ARTICLE 8 Defaults; Events; Remedies.....................................26
ARTICLE 9 Rights of Mortgagee/Ground Lessor..............................28
ARTICLE 10 Miscellaneous Provisions.......................................29
10.1 Title..........................................................29
10.2 Notices........................................................29
10.3 Bind and Inure.................................................30
10.4 Partial Invalidity.............................................30
10.5 No Waiver......................................................30
10.6 No Surrender...................................................30
10.7 No Accord and Satisfaction.....................................30
10.8 Intentionally Deleted..........................................30
10.9 Self-Help......................................................30
10.10 Estoppel Certificates..........................................31
10.11 Waiver of Subrogation..........................................32
10.12 Governing Law..................................................32
10.13 Acts of God....................................................32
10.14 Consent........................................................32
10.15 Brokerage Commissions..........................................32
10.16 Intentionally Deleted..........................................33
10.17 Limitation of Liability........................................33
10.18 Intentionally Deleted..........................................33
10.19 Recording......................................................33
10.20 Intentionally Deleted..........................................33
10.21 Term Commencement Date.........................................33
10.22 Improvements...................................................34
10.23 Electricity....................................................36
10.24 Option to Extend...............................................37
10.25 Hazardous Materials............................................39
10.26 Right of First Offer...........................................40
10.27 Right of First Refusal.........................................42
10.28 Right to Reduce Space..........................................43
10.29 Storage Premises...............................................44
10.30 Antenna Installation...........................................45
10.31 Exterior Signage...............................................48
10.32 Food Service Facility..........................................49
10.33 Exercise Facility..............................................49
10.34 Temporary Premises.............................................49
10.35 Testing of Building HVAC System................................50
DATE OF LEASE EXECUTION: February , 1998
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ARTICLE I
REFERENCE
1.1 Subjects Referred To. Each reference in this Lease to any of the following
subjects shall be construed to incorporate the data for that subject in this
Article.
PARTIES:
LANDLORD: NORTHLAND METRO PORTFOLIO LIMITED PARTNERSHIP, a Massachusetts
limited partnership
MANAGING AGENT: NORTHLAND INVESTMENT CORPORATION
LANDLORD'S/MANAGING AGENT'S ADDRESS FOR NOTICES:
Northland Investment Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
MAKE CHECKS PAYABLE TO: NORTHLAND METRO PORTFOLIO LIMITED PARTNERSHIP
SEND CHECKS TO: x/x Xxxxxxxxx
X.X. Xxx 000000
Xxxxxx Xxxxx Xxxxx, XX 00000-0000
TENANT: THE LINCOLN NATIONAL LIFE INSURANCE COMPANY,
an Indiana corporation
TENANT'S ADDRESS (FOR NOTICE AND BILLING):
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Vice President, Financial Reporting & Pricing
BUILDING & LEASED PREMISES: Approximately 149,778 rentable square feet
comprising the entire seventh (7th) through twelfth (12th) floors
(collectively, the "Premises") of the building known as the Metro Center
and located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx (the "Building"),
substantially as shown on the Plans attached hereto as Exhibit "A". All
measurements and determinations of area required pursuant to this Lease
shall be made in accordance with the Building Owners and Managers
Association ("BOMA") standards, BOMA publication ANSI 265.1-1996. Prior to
the Term Commencement Date, as hereinafter defined, the area of the
Premises will be remeasured in accordance with BOMA standards. If such
remeasurement discloses a different rentable area for the Premises than
that set forth above, then the Base Rent and Tenant's Proportionate Share
(as such terms are hereinafter defined) shall be adjusted accordingly.
PROPERTY: The Building, the parking structure (the "Garage") with an
address at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx, and the land parcel(s)
on which the Building and the Garage are located, including exterior
grounds and sidewalks, if any.
TERM COMMENCEMENT DATE: See Section 10.21
EXPIRATION DATE: The date which is one hundred twenty (120) months and two
(2) weeks after the Term Commencement Date; provided, however, if such date
shall fall on other than the last day of a calendar month, the Expiration
Date shall be deemed to be the last day of the calendar month in which such
date shall occur.
TERM: One hundred twenty (120) months and two (2) weeks (plus the partial
month, if any, at the end of the Term), as the same may be sooner
terminated or extended in accordance with the terms of this Lease.
OPTION TO EXTEND: See Section 10.24
BASE RENT RATE:
Months 1- 24: $12.00 per rentable square foot of the Premises per year
Months 25-60: $17.00 per rentable square foot of the Premises per year
Months 61-84: $22.00 per rentable square foot of the Premises per year
Months 85-96: $24.00 per rentable square foot of the Premises per year
Months 97-108: $24.50 per rentable square foot of the Premises per year
Months 109-
Expiration Date: $25.00 per rentable square foot of the Premises per year
PROPORTIONATE SHARE: 52.56%, being a fraction, the numerator of which is the
rentable area of the Premises and the denominator of which is the rentable
area of the Building.
OPERATING COSTS FOR THE BASE CALENDAR YEAR: The actual amount of Operating
Costs for the first twelve (12) months of the Term
-------------------------------------------
REAL ESTATE TAXES FOR THE BASE CALENDAR YEAR: The actual amount of
Landlord's Tax Expense for the first twelve (12) months of the
-----------------------------------------------
Term
PERMITTED USE OF PREMISES: General office use only (without associated bulk
storage or uses requiring above building standard structural, electrical or
HVAC facilities), and for no other use or purpose.
TENANT INSURANCE REQUIREMENTS: Public Liability Insurance
Combined Single Limit
Bodily Injury & Property Damage: $3,000,000.00/$5,000,000.00
SECURITY DEPOSIT: None
GUARANTOR: None
BROKER: Xxxxxxx & Xxxxxxxxx of Connecticut, Inc.
1.2 Exhibits & Riders. The Exhibits and Riders listed below in this Section
are incorporated in this Lease by reference and are to be construed as part
of this Lease:
Exhibit A Plan of Premises
Exhibit B Landlord Services
Exhibit B-1 Cleaning Specifications
Exhibit C Rules and Regulations
Exhibit D Form of Subordination, Non-Disturbance and Attornment
Agreement
Exhibit E Plan of Storage Premises
Exhibit F Form of Metro Center Fitness Club Usage Agreement
ARTICLE II
DESCRIPTION OF PREMISES AND APPURTENANT RIGHTS
2.1 Location of Premises. Landlord hereby demises and leases to Tenant, and
Tenant hereby accepts from Landlord, the Premises suitably identified in
the foregoing portion of this Lease.
2.2 Appurtenant Rights and Reservations. Tenant shall have, as appurtenant
to the Premises, the non-exclusive right to use, and permit its invitees to
use in common with others, the public or common lobbies, hallways,
stairways, passenger elevators and sanitary facilities in the Building, but
such rights shall always be subject to the Rules and Regulations set forth
on Exhibit C (as the same may be amended or modified from time to time by
Landlord by prior notice to Tenant), and to the right of Landlord to
designate and change from time to time areas and facilities so to be used
(provided that Tenant's use and enjoyment thereof and of the Premises and
Tenant's rights under this Lease are not materially adversely affected
thereby). Tenant shall also have, as appurtenant to the Premises, subject
to obtaining Landlord's prior written consent, the non-exclusive right to
use reasonable portions of common area conduits, chutes and pipes adjacent
to the Premises for the purpose of running wires and cabling between floors
of the Premises to serve Tenant's equipment located within the Premises.
Tenant agrees that Landlord shall have the right, upon reasonable prior
written notice to Tenant, to place in, over and upon the Premises (but in
such a manner as to reduce interference with Tenant's use of the Premises
and not be visible from within the Premises) utility lines, pipes,
equipment and the like to serve the Premises or premises other than the
Premises, and to replace, maintain and/or repair such utility lines, pipes,
equipment and the like.
During the hours of 7:00 A.M. to 6:00 P.M., Monday through Friday, legal
holidays recognized generally in first-class office buildings in downtown
Hartford excepted (hereinafter referred to as "Normal Building Operating
Hours"), the Building shall be open and access to the Premises shall be
freely available, subject to interruption due to causes beyond Landlord's
reasonable control. During all periods other than Normal Building Operating
Hours Tenant shall have access to the Premises, and at all times Tenant
shall have access to the Garage, but always subject to reasonable rules and
regulations therefor from time to time established by Landlord by suitable
notice.
2.3 Parking. During the Term of this Lease, Landlord will make available
for the use by Tenant and its employees four (4) Garage parking passes for
each one thousand (1,000) rentable square feet of the Premises.
Notwithstanding the foregoing, Tenant shall have the one-time right, upon
thirty (30) days prior written notice to Landlord, which notice must be
given on or before the third (3rd) anniversary of the Term Commencement
Date, to reduce the number of Garage parking passes available for its use
to three (3) Garage parking passes for each one thousand (1,000) rentable
square feet of the Premises; and, if Tenant shall exercise such right, the
number of Garage parking passes shall be so reduced effective as of the
expiration of such thirty (30) day period. Said parking passes shall be
paid for by Tenant at the following rates (in each case plus applicable
State sales tax): $50.00 per pass per month for months 1-24 of the Term;
$70.00 per pass per month for months 25-36 of the Term; $80.00 per pass per
month for months 37-48 of the Term; $100.00 per pass per month for months
49-60 of the Term; $125.00 per pass per month for one-half (1/2) of the
passes for months 61 through the Expiration Date of the Term; and at the
then current prevailing rate in the Garage, as such rate may vary from time
to time, for the other one-half (1/2) of the passes for months 61 through
the Expiration Date of the Term. All parking passes (and the parking spaces
in the Garage) will be on an unassigned, non-reserved basis, except for
thirty (30) spaces, twenty (20) of which shall be designated by Landlord as
reserved for Tenant's exclusive use and ten (10) of which shall be
designated by Landlord as reserved for the use by Tenant's visitors and
guests. Such thirty (30) spaces shall be in a preferred location in the
Garage (as designated by Landlord) and shall be indicated by signage (or
other form of identification) installed by Landlord and approved by Tenant;
provided, however, that in no event shall Landlord be obligated to police
the use of such thirty (30) spaces. Notwithstanding the preceding sentence,
upon written notice from Tenant that unauthorized persons are using any of
such thirty (30) spaces, Landlord shall use reasonable efforts to cause
such persons not to use such spaces; provided, however, that Landlord shall
have no obligation to terminate any lease to which Landlord and such
persons may be parties by reason of such unauthorized use. The use of all
parking spaces in the Garage shall be subject to rules and regulations
promulgated by Landlord from time to time.
Except in connection with a permitted sublease or assignment under Article
VI hereof, Tenant shall have no right to sublet, assign or otherwise
transfer said parking passes without Landlord's prior written consent. If
Tenant shall desire to sublet, assign or otherwise transfer any of said
parking passes, Tenant shall submit to Landlord in writing the name of the
proposed transferee, the terms and conditions of the transfer (including
copies of the proposed sublease or assignment) and any other information
reasonably requested by Landlord. Landlord shall have the right,
exercisable by written notice to Tenant within ten (10) business days after
Landlord's receipt of Tenant's notice, to recapture any or all of the
parking passes which are the subject of the proposed sublease, assignment
or other transfer. If Landlord shall exercise such right, Tenant shall have
no further right to such parking passes (and shall return the same to
Landlord) effective as of the date and for the period of time set forth in
Landlord's recapture notice. If Landlord shall not exercise such right,
Landlord's consent to the proposed sublease, assignment or other transfer
shall not unreasonably withheld or unduly delayed; provided, however, that
Landlord may withhold its consent if in the exercise of its sole judgment
Landlord determines that (i) the financial condition or general reputation
of the proposed transferee is not consistent with the extent of the
obligations undertaken by the proposed sublease, assignment or other
transfer, or (ii) Tenant proposes to sublet or assign to one who, at the
time of Tenant's request for consent, is a tenant or occupant of the
Building and/or is using parking spaces in the Garage or to one with whom
Landlord or its agents is (are) actively negotiating for space in the
Building or for parking spaces or passes in the Garage, or (iii) the
charges for the parking passes which the transferee is obligated to pay are
less than the then current prevailing rate (from time to time) in the
Garage. Tenant acknowledges that Landlord's consent may be conditioned
upon, inter alia, a requirement that all charges payable for the use of
such parking passes in excess of the charges payable hereunder for such
parking passes be paid to Landlord.
ARTICLE III
RENT AND ADDITIONAL RENT
3.1 Rent. All monies payable by Tenant to Landlord under this Lease shall
be deemed to be rent and shall be payable and recoverable as rent in a
manner herein provided. Rent shall be paid to the Landlord, commencing on
the Term Commencement Date, and on the first day of each calendar month
during the Term of this Lease without any withholding, offset, abatement,
reduction, prior notice or demand, except as otherwise expressly set forth
in this Lease. Until notice of some other designation is given, rent and
all other charges shall be paid by check to the order of Landlord at
Landlord's mailing address set forth in Section 1.1 hereof, receipt of same
being subject to collection. Notwithstanding the foregoing, provided that
Tenant is not in default under this Lease, Tenant shall be entitled to a
credit against Base Rent payable hereunder in the amount of $.50 for each
rentable square foot of the Premises not occupied by Tenant for business
during the first two (2) weeks of the Term, the amount of such credit to be
confirmed in writing by Landlord and Tenant promptly after the expiration
of such first two (2) week period.
If Tenant shall fail to pay rent when due, such unpaid amount shall bear
interest until paid at the rate of 1.5% per month for all sums which are in
excess of ten (10) business days overdue. In the event Tenant pays any rent
or other charge by check or draft, and said check or draft is not honored
by the bank on which it is drawn, interest as set forth herein and an
additional charge of $15.00 shall be due from Tenant to Landlord.
3.2 Operating Cost Increase. If the Operating Costs for any calendar year
or partial calendar year during the Term are greater than the Operating
Costs for the Base Calendar Year set forth in Section 1.1 (or a prorated
amount thereof for any partial calendar year), then Tenant shall pay to
Landlord its Proportionate Share set forth in Section 1.1 of such excess,
as the same may be adjusted in the event of a remeasurement or change in
size of the Premises or Building. Operating Costs for the Base Calendar
Year shall be adjusted to reflect an occupancy rate in the Building of
ninety-five percent (95%).
Landlord may from time to time reasonably estimate the amount due from
Tenant under this Section with respect to any calendar year or portion
thereof and, commencing no sooner than the first (1st) anniversary of the
Term Commencement Date, Tenant shall pay periodically as Landlord may
determine, but not more frequently than monthly, the amount of Landlord's
estimate as rent with the next due payment of monthly Base Rent.
Not later than one hundred twenty (120) days after the end of each calendar
year, Landlord shall render Tenant a statement of Operating Costs for such
calendar year and any amount due from Tenant or any credit due to Tenant
hereunder. Payment by Tenant of any amount due shall be made as additional
rent with Tenant's next due payment of monthly Base Rent (or, if the term
of this Lease has ended, within ten (10) days of receipt of such
statement), and Landlord shall credit the amount of any overpayment against
subsequent obligations of Tenant under this clause (or refund such
overpayment, if the term of this Lease has ended and Tenant has no further
obligations to Landlord). Failure by Landlord to deliver such statement
within the one hundred twenty (120) day period does not relieve Tenant of
its obligation to pay the charges described herein; provided, however, that
in the event that Landlord fails to furnish Tenant with such statement
within two (2) years after the end of any calendar year, then Tenant shall
not be required to pay Tenant's Proportionate Share of any increase in
Operating Costs for that calendar year.
Tenant shall have the right, at Tenant's cost and expense (subject to the
penultimate sentence of this paragraph), to examine Landlord's books and
records of Operating Costs for any year with respect to which Tenant has
made its payments on account thereof, subject to the following provisions:
(a) Such books and records shall be made available to Tenant at the offices
where Landlord keeps the same during normal business hours.
(b) Tenant shall have the right to make such examination no more than once
in respect of any period in which Landlord has given Tenant a statement of
the actual amount of Operating Costs.
(c) Any request for examination in respect of any year may be made no more
than one (1) year after Landlord renders the statement of the actual amount
of Operating Costs for such year, and such examination shall be performed
within such one (1) year period.
(d) Such examination may be made only by an independent certified public
accountant reasonably acceptable to Landlord. Without limiting Landlord's
approval rights, Landlord may withhold its approval of any examiner of
Tenant who is being paid by Tenant on a contingent fee basis.
(e) As a condition to performing any such examination, Tenant and its
examiners shall be required to execute and deliver to Landlord an
agreement, in form acceptable to Landlord, agreeing to keep confidential
any information which it discovers about Landlord or the Building in
connection with such examination.
If it is determined that Landlord overstated Operating Costs for the year
to which Tenant's examination relates by more than 4%, Landlord shall
reimburse Tenant for the reasonable costs and expenses incurred by Tenant
in performing such examination, but in no event shall such reimbursement
exceed $2,000.00; and if it is determined that Landlord understated
Operating Costs for the year to which Tenant's examination relates,
Landlord shall reimburse Tenant for the reasonable costs and expenses
incurred by Tenant in performing such examination, but in no event shall
such reimbursement exceed the amount of Tenant's underpayment on account of
Operating Costs for such year. If it is determined that there was an
overpayment or underpayment on account of Operating Costs for the year to
which Tenant's examination relates, Landlord shall reimburse Tenant, or
Tenant shall pay to Landlord, within thirty (30) days of such
determination, the amount of such overpayment or underpayment (as the case
may be).
3.3 Definition of "Operating Costs." The term "Operating Costs" is defined
to be the aggregate of costs and expenses incurred for operating,
maintaining, repairing, cleaning and managing the Property, including,
without limitation, the following: salaries, wages, employment taxes,
reasonable, customary and mandatory benefits for employees of Landlord or
its managing agent (provided, however, that with respect to any employee
who performs services for buildings other than the Building, the salaries,
wages, taxes and benefits payable or allocable to such employee shall be
equitably apportioned among the buildings to which such employee renders
services based upon the time which such employee spent performing services
for each such building), costs of providing HVAC and elevator service,
costs of any contractor of Landlord engaged in the cleaning, operating,
maintenance or management of the Property, electricity properly chargeable
hereunder, gas, oil, water (including chilled water) and steam (including
sewer rental and any utility tax), rubbish removal, Landlord's insurance of
every description and type related to the Property, repairs, replacements,
maintenance of any grounds, landscaping and planting, building supplies,
costs of operating the food service facility described in Section 10.32
below (unless such food service facility is operated by a rent-paying
tenant, in which event only the costs of operating the food service
facility in excess of the rent paid by such tenant shall be included in
Operating Costs), costs of operating (including the maintenance and
replacement of equipment for) the exercise facility described in Section
10.33 below, snow removal, window cleaning, building security, service
contracts with independent contractors for any of the foregoing (including
elevator and air conditioning maintenance), the cost of capital
replacements, the cost of new (i.e., as opposed to replacement) capital
improvements which are reasonably projected to reduce energy or other
operating costs (provided, however, that the cost of all capital
expenditures (both for replacements and new improvements) shall be
amortized over their useful life in accordance with generally accepted
accounting principles, consistently applied ("GAAP"), together with market
interest on the unamortized balance), management fees, energy audits, and
legal and accounting fees directly related to the operating of the
Property.
For purposes of this Lease, the aggregate controllable expenses includable
in Operating Costs for any calendar year shall not exceed one hundred five
percent (105%) of the aggregate controllable expenses for the prior
calendar year. "Controllable" shall mean within the reasonable control of
Landlord and not determined by a third party. For example, utility rates,
insurance premiums, mandated minimum wages and tax rates or assessments are
not controllable.
Notwithstanding the foregoing, the following items shall be excluded from
the definition of Operating Costs:
(a) Costs of decorating, redecorating or special cleaning or other services
provided to a particular tenant (but not all tenants) of the Building;
(b) Wages, salaries, fees and fringe benefits paid to officers or partners
of Landlord or personnel above the level of Property Manager;
(c) Any charge for depreciation of the Building or Building equipment;
(d) Any charge for Landlord's income taxes, excess profit taxes, franchise
taxes or similar taxes on Landlord's business;
(e) All costs directly relating to activities for the solicitation and
execution of leases of space in the Building;
(f) All costs and expenses of operating the Garage;
(g) All costs for which Tenant or any other tenant in the Building is
separately charged (other than through the operating cost escalation
provisions of the lease with such other tenant);
(h) The cost of any electric current furnished to office tenants for
non-customary office machinery and equipment;
(i) The cost of correcting defects in the original construction of the
Building, except that conditions (not occasioned by construction defects)
resulting from ordinary wear and tear will not be deemed defects for the
purpose of this clause (i);
(j) The cost of correcting defects in Building equipment to the extent such
cost is covered by warranty, except that conditions resulting from ordinary
wear and tear will not be deemed defects for the purpose of this clause
(j);
(k) The cost of any repair made by Landlord because of the total or partial
destruction of the Building by fire or other casualty (except that
reasonable deductible amounts may be included in Operating Costs) or the
condemnation of a portion of the Building;
(l) Any increase in Landlord's insurance premiums to the extent that such
increase is caused by or attributable to the particular use, occupancy or
act of another tenant;
(m) The cost of any items for which Landlord is reimbursed by insurance or
otherwise compensated by other parties (other than tenants of the Building
through the operating cost escalation provisions of the leases with such
tenants);
(n) The cost of capital expenditures, except as set forth above;
(o) The cost of any removal, treatment or abatement of asbestos or any
other hazardous substance or gas in the Building or on the Premises (other
than those customarily handled and disposed of incident to the normal
operation, maintenance or repair of the Property, such as cleaning
materials);
(p) Any amount paid to an affiliate of Landlord which is in excess of the
amount which would be paid in the absence of such relationship (it being
acknowledged and agreed, however, that a management fee not exceeding 4% of
gross revenues from the Property payable to an affiliate of Landlord will
not violate this clause (p));
(q) The cost of any work or service performed for or facilities furnished
to any tenant of the Building to a greater extent or in a manner more
favorable to such tenant that that performed for or furnished to Tenant;
(r) The cost of preparing, improving or altering space in the Building
leased to other tenants;
(s) The cost of overtime or other expense to Landlord in curing its
defaults; and
(t) Ground rent or similar payments to a ground lessor.
Landlord shall compute Operating Costs on an accrual basis in accordance
with GAAP. Until such time as the occupancy rate in the Building is at
least ninety-five percent (95%), Landlord shall have the right to adjust
those Operating Costs which may vary based on occupancy levels to reflect a
ninety-five percent (95%) occupancy rate in the Building.
In the event that Operating Costs shall contain any costs of operating or
maintaining any system or providing any services which shall serve the
Premises but less than the entire Building, then such portion of Operating
Costs shall be calculated separately from other costs within Operating
Costs. With respect to such costs, Tenant shall not pay its Proportionate
Share as defined in Section 1.1 but rather a proportionate share calculated
as a fraction, the numerator of which is the rentable square footage of the
Premises as established in Article I, and the denominator of which shall be
the rentable square footage of the space served by the system or receiving
the services, as the case may be.
3.4 Real Estate Tax Increase. If Landlord's Tax Expense for any calendar
year or partial calendar year during the Term is greater than the Real
Estate Taxes for the Base Calendar Year set forth in Section 1.1, Tenant
shall pay to Landlord, as additional rent, its Proportionate Share set
forth in Section 1.1 of such excess, as the same may be adjusted in the
event of a remeasurement or change in size of the Premises or Building.
Landlord may from time to time reasonably estimate the amount due from
Tenant under this Section with respect to any calendar year or portion
thereof and, commencing no sooner than the first (1st) anniversary of the
Term Commencement Date, Tenant shall pay periodically as Landlord may
determine, but not more frequently than monthly, the amount of Landlord's
estimate as rent with the next due payment of monthly Base Rent.
Not later than one hundred twenty (120) days after Landlord's Tax Expense
for the applicable period is determined, Landlord shall render Tenant a
statement (which shall include copies of real estate tax bills and invoices
from tax abatement consultants, if any) showing for the applicable period
Landlord's Tax Expense and any other amount due from Tenant or any credit
due to Tenant hereunder. Payment by Tenant of any amount due shall be made
as additional rent with Tenant's next due payment of monthly Base Rent (or,
if the term of this Lease has ended, within ten (10) days of receipt of
such statement), and Landlord shall credit the amount of any overpayment
against subsequent obligations of Tenant under this clause (or refund such
overpayment, if the term of this Lease has ended and Tenant has no further
obligations to Landlord). Failure by Landlord to deliver such statement
within the one hundred twenty (120) day period does not relieve Tenant of
its obligation to pay the charges described herein.
The term "Landlord's Tax Expense" shall mean all taxes, betterments and
assessments of every kind and nature assessed by any governmental authority
on the Property which Landlord shall become obligated to pay because of or
in connection with the ownership, leasing and/or operating of the Property
plus the reasonable costs incurred in any attempt to obtain a real estate
tax abatement for the real estate taxes due during the term hereof, whether
or not successful, subject to the following:
(a) The amount of special taxes or special assessments to be included shall
be limited to the amount of the installment (plus any interest, other than
penalty interest, payable thereon) of such special tax or special
assessment required to be paid during the year in which such taxes are
being determined;
(b) There shall be excluded from such taxes interest and penalties due to
Landlord's failure to pay taxes when they are due and all income taxes,
excess profit taxes, excise taxes, franchise taxes, estate, succession,
inheritance and transfer taxes; provided, however, that if at any time
during the Term the present system of ad valorem taxation of real property
shall be changed so that in lieu of the whole or any part of the ad valorem
tax on real property, there shall be assessed on Landlord a capital levy or
other tax on the gross rents received with respect to the Property or a
federal, state, county, municipal or other local income, franchise, excise
or similar tax, assessment, levy or charge (distinct from any now in
effect) measured by or based, in whole or in part, upon any such gross
rents, then any and all of such taxes, assessments, levies or charges, to
the extent so measured or based, shall be deemed to be included within the
term "Landlord's Tax Expense" but only to the extent that the same would be
payable if the Property were the only property of Landlord; and
(c) Landlord's Tax Expense shall be reduced by the amount of any abatements
or refunds actually received net of the reasonable expenses, including
without limitation legal fees and expert witness fees, incurred in
obtaining such abatements or refunds.
Although real estate taxes in Connecticut are payable on the basis of a
July 1 - June 30 fiscal/tax year, for the purposes of this Section 3.4,
Landlord's Tax Expense shall be computed on a calendar year basis, based
upon the sum of one-half (1/2) of Landlord's Tax Expense payable in respect
of one fiscal/tax year, plus one-half (1/2) of Landlord's Tax Expense
payable in respect of the next fiscal/tax year. (For example, Landlord's
Tax Expense for 1997 would be 1/2 of Landlord's Tax Expense in respect of
the 1997 fiscal/tax year, plus 1/2 of Landlord's Tax Expense in respect of
the 1998 fiscal/tax year.)
ARTICLE IV
LANDLORD'S COVENANTS, INTERRUPTIONS AND DELAYS
4.1 Landlord Covenants.
4.1.1 To furnish services, facilities and supplies set forth in Exhibit B,
comparable to first-class office buildings in downtown Hartford.
4.1.2 Except as otherwise provided in Article VII and except in the case of
damage caused by any act or negligence of Tenant, its employees, agents,
contractors, invitees or servants, to make such repairs to the roof,
exterior walls, floor slabs and common areas and facilities of the Building
as may be necessary to keep them in serviceable condition.
4.1.3 That Tenant, on paying the rent and performing Tenant's obligations
in this Lease, shall peacefully and quietly have, hold and enjoy the
Premises, free from claims of Landlord or those claiming under Landlord,
subject to all of the terms and provisions hereof.
4.1.4 Landlord shall carry commercial general liability insurance for the
Building with a combined single limit of at least $5,000,000 (and, upon
written request, Landlord shall provide Tenant with a certificate of
insurance evidencing such coverage), as well as fire and hazard insurance
coverage for the Building. The coverages provided in the preceding sentence
shall also satisfy all requirements of Landlord's mortgagee. Landlord or
Landlord's managing agent shall carry appropriate workers' compensation and
employer's liability insurance on those employees who may at any time enter
the Premises.
4.1.5 Landlord shall comply with all federal, state and local laws,
ordinances, regulations and codes relating to the operation of the Building
generally as an office building (specifically excluding, without
limitation, the manner of use by Tenant of the Premises or by other tenants
of other premises in the Building). Without limiting the foregoing,
Landlord shall cause the common areas of the Building to comply with the
Americans with Disabilities Act of 1990 (the "ADA") as in effect on the
date hereof.
4.1.6 Subject to the provisions of Section 10.11 hereof, Landlord agrees to
hold Tenant harmless and to defend, exonerate and indemnify Tenant from any
against any and all claims, liabilities or penalties (including, without
limitation, reasonable attorneys' fees) asserted by or on behalf of any
third party against Tenant for damage to property or injuries to persons
sustained or occurring in the Building to the extent arising from the
negligence or willful misconduct of Landlord or Landlord's agents,
employees or contractors.
4.2 Interruption and Delay. Landlord reserves the right to stop any service
or utility system when necessary by reason of accident or emergency or
until necessary repairs have been completed; provided, however, that in
each instance of stoppage, Landlord shall exercise reasonable diligence to
eliminate the cause thereof. Except in case of emergency repairs, Landlord
will give Tenant reasonable advance notice of any contemplated stoppage and
will use reasonable efforts to avoid unnecessary inconvenience to Tenant by
reason thereof. In case Landlord is prevented or delayed from making any
repairs, alterations or improvements, or furnishing any services or
performing any other covenant or duty to be performed on Landlord's part,
by reason of any cause reasonably beyond Landlord's control, including
without limitation the causes set forth in Section 10.13 hereof, Landlord
shall not be liable to Tenant, nor shall the same give rise to a claim in
Tenant's favor that such failure constitutes actual or constructive, total
or partial, eviction from the Premises, and Tenant's sole remedies shall be
in the following circumstances, as and to the extent described:
(a) If, due to Landlord's failure to provide any service or utility
(including electricity) required to be provided by Landlord under this
Lease, the Premises or any portion thereof becomes untenantable so that,
for the Premises Untenantability Cure Period, as hereinafter defined, the
continued operation in the ordinary course of Tenant's business is
materially adversely affected, then, provided that Tenant ceases to use the
affected portion of the Premises during the entirety of the Premises
Untenantability Cure Period (except for such temporary access thereto as is
necessary to obtain files, records and the like) and that such
untenantability and Landlord's inability to cure such condition are not
caused by the fault or neglect of Tenant or Tenant's agents, employees or
contractors or any other cause beyond Landlord's reasonable control, Base
Rent and Tenant's payments on account of Operating Costs and Landlord's Tax
Expense shall thereafter be abated in proportion to such untenantability
until the day such condition is corrected. For the purposes hereof, the
"Premises Untenantability Cure Period" shall be defined as five (5)
consecutive business days after Landlord's receipt of written notice from
Tenant of the condition causing untenantability in the Premises.
(b) If, due to Landlord's failure to provide any service or utility
(including electricity) required to be provided by Landlord under this
Lease, the Premises or any portion thereof becomes untenantable, the
untenantability of which materially adversely affects the continued
operation in the ordinary course of Tenant's business, and if (i) such
untenantability continues for sixty (60) consecutive days after Landlord's
receipt of written notice of such condition from Tenant, and (ii) such
untenantability and Landlord's inability to cure such condition are not
caused by the fault or neglect of Tenant or Tenant's agents, employees, or
contractors, then, provided that Tenant ceases to use the affected portion
of the Premises during the entirety of such sixty (60) day period (except
for such temporary access thereto as is necessary to obtain files, records
and the like), Tenant shall have the right to terminate this Lease
exercisable by giving Landlord a written termination notice as follows.
Upon the giving of such notice, this Lease shall terminate as of the date
which is thirty (30) days after Landlord's receipt thereof, unless Landlord
shall have cured such condition on or before such thirtieth (30th) day.
The provisions of clauses (a) and (b) above shall not apply in the event of
untenantability caused by fire or other casualty or taking (see Article
VII).
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the Term and such further time as Tenant occupies
any part of the Premises:
5.1 Tenant's Payments. To pay when due all rent and additional rent and all
charges for utility services rendered to the Premises therefor including
electricity costs and, as further additional rent, all charges for
additional services agreed to from time to time.
5.2 Repairs & Yielding Up. To keep and maintain the Premises in good order
and condition, reasonable wear and tear and damage by casualty or taking
excepted, and to notify Landlord promptly of any repairs to be made in or
to the Premises. At the expiration or termination of this Lease, Tenant
shall peaceably yield up the Premises and all alterations, additions and
improvements (it is agreed that alterations, additions and improvements
made to the Premises, except for the installation of so-called Liebert
units which Tenant may remove, shall become part of the Premises and the
property of Landlord), unless Landlord requests removal of same by Tenant,
in good order and repair and in the same condition as said Premises were in
at Term Commencement Date or thereafter may be put in accordance with this
Lease, reasonable wear and tear or damage by casualty or taking excepted,
first removing all personal property, trade fixtures, business equipment
and other goods and effects of Tenant (including, without limitation, all
telephone and computer equipment), and repairing any damage caused by such
removal and restoring the Premises and leaving them broom clean and neat.
Any of Tenant's property which shall remain in the Building or on the
Premises after the expiration or earlier termination of the Lease shall be
deemed conclusively to have been abandoned and either may be retained by
Landlord as its property or may be disposed of in such manner as Landlord
may see fit, at Tenant's sole cost and expense.
5.3 Occupancy & Use. Continuously from the Term Commencement Date to use
and occupy the Premises for only the Permitted Use of Premises; to comply
with all applicable federal, state and local laws, ordinances, regulations
and codes in its use and occupancy of the Premises; not to injure or deface
the Premises, Building or any other portion of the Property; and not to
dump, flush, or in any way introduce any hazardous, toxic or chemical
substances into the septic, sewage or other waste disposal system; and not
to use, generate, store or dispose of hazardous, toxic or chemical
substances in or on the Premises (except those in customary types and
quantities and ordinarily used by office tenants, and then only in
accordance with law and manufacturer's specifications therefor); and not to
permit the emission from the Premises of any objectionable noise or odor,
or to create any nuisance, and not to use the Premises for an auction sale
or any purpose which is inconsistent with the tenancy of the Building, or
which is improper, offensive, contrary to law or ordinance or liable to
invalidate or increase the premiums for any insurance on the Building or
its contents or liable to render necessary any alteration or addition to
the Building; and not to obstruct in any manner any portion of the Building
not hereby leased or any portion thereof or of the Building used by Tenant
in common with others and not without prior written consent of Landlord,
permit the painting or placing of any curtains, blinds, shades, awnings,
aerials, signs, flagpoles or the like, visible from outside the Premises.
5.4 Rules & Regulations. To comply with the Rules and Regulations attached
hereto as Exhibit C and all other reasonable rules and regulations
hereafter made or modified by Landlord, of which Tenant has been given
notice, provided that such other rules and regulations shall not materially
adversely affect Tenant's rights under this Lease. Landlord shall use
reasonable efforts to uniformly enforce such rules and regulations against
all tenants of the Building; provided, however, that in no event shall
Landlord be obligated to terminate the lease of any tenant of the Building
by reason of a violation of any rule or regulation.
5.5 Alterations by Tenant. In connection with making any changes, additions
and improvements to the Premises, to (i) obtain the prior written consent
of Landlord of the same (except for changes, additions or improvements
costing no more than $80,000 in the aggregate per calendar year and which
are non-structural in nature and not visible from outside the Premises,
notice of which is given to Landlord prior to the commencement of the same)
and of plans, specifications and the licensed contractor to be used by
Tenant and any other data reasonably required to be furnished by Tenant;
(ii) comply with all governmental requirements; including but not limited
to building, electrical and plumbing codes; (iii) equal or exceed the
current construction standard for the Building; (iv) provide Landlord with
evidence of the insurance covering such work; and (v) provide Landlord with
"as-built" drawings and specifications upon completion of such work. All
work performed shall be done in such a manner as not to disturb or disrupt
the operation of the Building or any other occupants in the Building. Any
increase in Landlord's Tax Expense or insurance premiums on the Property
attributable to such change, addition or improvements shall be paid by
Tenant. Tenant agrees that it will not, either directly or indirectly, use
any contractors and/or materials if their use will create any difficulty,
whether in the nature of a labor dispute or otherwise, with other
contractors and/or labor engaged by Tenant or Landlord or others in the
construction, maintenance and/or operation of the Property or any part
thereof.
5.6 Indemnity. To defend with counsel duly licensed in the state in which
the Building is located, save harmless, and indemnify Landlord and its
agents and employees from any liability for injury, loss, accident or
damage to any person or property, and from any claims, actions, proceedings
and expenses and costs in connection therewith, including without
limitation reasonable counsel fees, (i) arising from the negligence or
willful misconduct of Tenant or Tenant's servants, agents, employees,
contractors, licensees or invitees, or arising from any use made or thing
done or occurring in or on the Premises not due to the negligence or
willful misconduct of Landlord, subject in any such case to the provisions
of Section 10.11 hereof, or (ii) resulting from the failure of Tenant to
perform and discharge its covenants and obligations under this Lease.
Tenant shall also indemnify and hold Landlord and its agents and employees
harmless from and against any losses, costs, damages or claims of whatever
nature arising out of or in connection with the compliance requirements set
forth in the ADA relating to Tenant's design, renovation, alteration and/or
construction of the Premises. The preceding sentence, however, shall not
apply to Tenant's initial design of the Premises as reflected in the
Construction Drawings (as hereinafter defined) or to the performance of
Landlord's Work (as hereinafter defined).
5.7 Tenant's Liability Insurance. To maintain with responsible companies
qualified to do business in the state in which the Building is located
public liability insurance covering the Premises insuring Landlord, the
Managing Agent and others in interest whom Landlord may reasonably request
as well as Tenant with the limits set forth in Section 1.1, which limits
may be increased based on industry standards, and worker's compensation
insurance with statutory limits covering all of Tenant's employees working
in the Premises. All policies shall be noncancelable and nonamendable with
respect to Landlord, the Managing Agent and Landlord's designees without
thirty (30) days prior notice to Landlord. A certificate of insurance
evidencing the above agreements shall be delivered to Landlord on or before
Term Commencement Date. If Tenant fails to comply with the foregoing
requirements, Landlord may obtain such insurance and keep same in effect,
and all sums paid by Landlord for such insurance hereunder shall be and are
hereby declared additional rent, due and payable forthwith.
5.8 Tenant's Property. That all of the furnishings, fixtures, equipment,
effects and property of every kind, nature and description of Tenant and of
all persons claiming by, through or under Tenant shall be insured to the
full replacement cost thereof under a broad form "all risk" insurance
policy and kept in the Premises or the Building at the sole risk and hazard
to Tenant, and if the whole or any part thereof shall be destroyed or
damaged by fire, water or other casualty including the leakage or bursting
of water pipes, steam pipes, or other pipes, or by theft or from any other
cause, no part of said loss or damage is to be charged to or borne by
Landlord unless, subject to Section 10.11 hereof, such loss or damage is
due to the negligence of the Landlord, in which case Landlord shall bear
loss or damage only to "ordinary office property" (as hereinafter defined).
For purposes of this Section 5.8, "ordinary office property" shall mean
merchandise, furniture and other tangible personal property of a kind and
quantity which may customarily be expected to be found within comparable
business offices in downtown Hartford, and excluding any unusually valuable
or exotic property, works of art and the like. At Tenant's option, (a)
Tenant may provide the insurance coverages required under Sections 5.7
and/or 5.8 through blanket policies of insurance covering more than one
location, provided the entire amount of insurance required of Tenant
hereunder is applicable to the Premises without regard to any other
location, and (b) Tenant may elect to self-insure for the liabilities and
casualties required to be covered by the insurance policies described in
Sections 5.7 and/or 5.8, provided that Tenant's net worth at all times
during such self-insurance remains at least equal to $1,000,000,000 and
Landlord is given written notice reasonably in advance of the effective
date of such self-insurance.
5.9 Landlord's Right to Entry. Upon at least twenty-four (24) hours prior
written notice to Tenant (except that no notice shall be required in an
emergency or for cleaning or routine repair and maintenance operations), to
permit Landlord and its agents entry to the Premises at reasonable times to
examine the same, make any repairs or replacements or, with Tenant's prior
written consent, improvements and/or additions, to carry out any right
granted by Section 10.9 and to show the Premises to prospective tenants
during the nine (9) months preceding expiration of the Term and to
prospective purchasers and mortgagees at all reasonable times. Landlord
shall exercise its rights of access to the Premises permitted hereunder in
such manner so as to minimize interference with Tenant's use and occupation
of the Premises, but in no event shall Landlord's entry prevent Tenant's
use of the Premises (except as may be required in an emergency). Except in
an emergency, Tenant shall have the opportunity to have a representative of
Tenant present during any entry by Landlord into the Premises.
5.10 Loading. Not to place a load upon the Premises exceeding 100 pounds of
combined load per square foot of floor area, and not to move any safe,
vault or other heavy equipment in, about or out of the Premises except in
such manner and at such time as Landlord shall in each instance authorize.
Tenant's business machines and mechanical equipment shall be installed to
prevent vibration or noise outside the Premises.
5.11 Liens & Property Taxes. Not to cause or allow liens of any kind to be
filed or placed against the Premises or the Property, and to immediately,
at its sole cost and expense, eliminate or bond over said lien and to pay
promptly when due all taxes which may be imposed upon personal property
(including, without limitation, fixtures and equipment) in the Premises to
whomever assessed.
5.12 Attorney's Fees. In the event of any litigation between the parties
concerning the enforcement of any obligations under this Lease, the
prevailing party shall be entitled to recover from the other party the
reasonable attorneys' fees and other expenses of litigation incurred by the
prevailing party.
5.13 Holding Over.
(a) Tenant shall have the right (which, if timely and properly exercised as
provided herein, shall be in lieu of the then applicable option, if any, to
extend the Term as provided in Section 10.24 below) to extend the Term of
this Lease for an additional period of three (3) months (the "Elected
Holdover Period"), such right to be exercised by notice to Landlord no
later than nine (9) months prior to the expiration of the then current Term
of this Lease. Said notice shall be effective only if given in the timely
manner described; however, Tenant's exercise of such right may be deemed
void in Landlord's sole discretion if Tenant is not occupying the Premises
for the Permitted Use or is in default under the terms of this Lease either
on the date of the notice or on the date of the expiration of the then
current Term hereof. If Tenant fails to give timely notice to Landlord as
herein provided, Tenant shall have no right to extend the Term for the
Elected Holdover Period, time being of the essence of this Section 5.13(a).
Upon the timely giving of such notice by Tenant, the Term of this Lease
shall be extended for the Elected Holdover Period upon all of the same
terms and conditions of this Lease in effect as of the expiration of the
then current Term of this Lease, except that the Base Rent shall equal one
hundred twenty-five percent (125%) of the Base Rent in effect at the
expiration of the then current Term of this Lease. Notwithstanding the fact
that, upon Tenant's exercise of its right to extend the Term for the
Elected Holdover Period, such extension shall be self-executing, as
aforesaid, upon request of either party, the parties shall promptly execute
a lease amendment reflecting such extension of the Term following Tenant's
exercise of such right.
(b) If Tenant continues to occupy the Premises after the expiration or
sooner termination of the Term of this Lease (as the same may be extended
for the Elected Holdover Period or pursuant to Section 10.24 below) without
Landlord's written consent (which consent may be withheld in Landlord's
sole and absolute discretion), Tenant shall pay, as a charge for use and
occupancy and liquidated damages (and not as rent), for each month of
continued occupancy an amount equal to one hundred fifty percent (150%) of
the total monthly rent payment (rent and all other monthly charges) in
effect prior to such holdover, and shall also pay all damages, both direct
and/or indirect (including, without limitation, loss of a tenant(s) or of
rental income), sustained by Landlord on account of such holding over if
Landlord shall have secured another tenant to lease the Premises or any
part thereof. No receipt of money by Landlord from Tenant after expiration
or termination of this Lease shall reinstate or extend this Lease.
5.14 Safety Requirements. To keep the Premises equipped with all safety
appliances required by law or ordinance or any other regulation of any
public authority because of any use made by Tenant (except that Tenant
shall not be required to install safety appliances that Landlord is
required to install generally throughout the Property), and to procure all
licenses and permits so required because of such use and, if requested by
Landlord, to do any work so required because of such use, it being
understood that the foregoing provisions shall not be construed to broaden
in any way the Permitted Use of the Premises.
ARTICLE VI
ASSIGNMENT, SUBLETTING, AND MORTGAGING
6.1 Procedure.
(a) Tenant will not, by operation of law or otherwise, assign, mortgage or
encumber this Lease, or sublet or permit the Premises or any part thereof
to be used by others, without Landlord's prior express written consent in
each instance. The consent by Landlord to any assignment or subletting
shall not in any manner be construed to relieve Tenant from obtaining
Landlord's express written consent to any other or further assignment or
subletting nor shall any assignment or subletting, with or without consent
by Landlord, serve to relieve or release Tenant from its obligations to
fully and faithfully observe and perform all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed.
(b) If Tenant shall desire to assign this Lease or to sublet the Premises,
Tenant shall submit to Landlord in writing (i) the name of the proposed
assignee or subtenant; (ii) the terms and conditions of the proposed
assignment or subletting (including copies of the proposed assignment or
sublease); (iii) the nature and character of the business and credit of the
proposed assignee or subtenant; and (iv) any other information reasonably
requested by the Landlord.
Landlord's consent to any such proposed assignment or subletting shall not
be unreasonably withheld or unduly delayed, provided, however, that
Landlord may withhold consent thereto if in the exercise of its sole
judgment it determines that:
1. The financial condition or general reputation of the proposed assignee
or subtenant is not consistent with the extent of the obligations
undertaken by the proposed assignment or sublease; or
2. The proposed use of the Premises is not in keeping with the character of
the existing tenancies of the Building or permitted by Section 1.1 of this
Lease; or
3. The nature of the occupancy of the proposed assignee or subtenant will
cause an excessive density of employees or traffic or make excessive
demands on the Building's services or facilities or in any other way will
lessen the character of the Building; or
4. The Tenant proposes to assign or sublet to one who at the time is a
tenant or occupant of premises in the Building (unless such tenant or
occupant is expanding and not relinquishing space and Landlord has no other
available space to lease to such tenant or occupant in the Building) or to
one with whom Landlord or its agents are actively negotiating for space in
the Building; or
5. The Tenant proposes to assign or sublet all or a portion of the Premises
at a rental rate less than the rental rate Landlord is then asking for
other space in the Building.
(c) Any instrument of sublease shall specifically state that such sublease
is subject to all of the terms, covenants and conditions of this Lease.
Each assignee or sublessee shall assume in writing this Lease and shall be
jointly and severally liable with Tenant for the full performance of all
covenants hereunder. An original or duplicate original of the assignment or
sublease shall be delivered to Landlord within ten (10) days following the
making thereof.
(d) Tenant shall pay to Landlord, as additional rent, (1) in the event of
an assignment, fifty percent (50%) of the amount of all monies, if any,
which the assignee has agreed to and does pay to Tenant in consideration of
the making of such assignment, after deduction for Tenant's reasonable
out-of-pocket costs in connection with such assignment, as set forth in a
reasonably detailed accounting (with supporting invoices) submitted by
Tenant to Landlord, and (2) in the event of a subletting, fifty percent
(50%) of the amount, if any, by which the rent and additional rent
(including parking charges, if any) payable by the sublessee to Tenant
shall exceed the sum of (x) the Base Rent plus additional rent (including
parking charges) allocable to that part of the Premises affected by such
sublease, plus (y) all of Tenant's reasonable out-of-pocket costs in
connection with such sublease, as set forth in a reasonably detailed
accounting (with supporting invoices) submitted by Tenant to Landlord. Such
additional rent payments shall be made monthly to Landlord within ten (10)
days after receipt of the same by Tenant.
(e) Landlord may collect rent directly from the assignee or, after a
monetary default by Tenant, subtenant or occupant upon notice thereof by
Landlord and apply the net amount collected (which may be treated by
Landlord as rent for use and occupancy) to the rent due hereunder or to
cure Tenant's default. Such collection of rent shall not be deemed a waiver
of the covenants in this Article, nor shall it be deemed acceptance of the
assignee, subtenant or occupant.
6.2 Affiliate Transfers. Notwithstanding anything to the contrary herein
contained, provided that Tenant is not in default under any terms of this
Lease, Tenant shall have the right, without Landlord's prior written
consent, but upon prior written notice to Landlord, to assign its interest
in this Lease or to sublease the Premises to an Affiliated Entity, as
hereinafter defined, so long as such Affiliated Entity remains in such
relationship with Tenant and has not been formed for the purpose of
subverting the restraints on alienation contained herein. For purposes
hereof, an "Affiliated Entity" shall be defined as (a) any entity which is
controlled by, is under common control with or which controls Tenant
(control, for purposes hereof, shall mean the direct or indirect ownership
of more than fifty percent (50%) of the beneficial interest of the entity
in question), or (b) a successor to Tenant by way of merger or purchase of
all or substantially all of Tenant's assets, provided that such successor
has a net worth at least equal to the net worth of Tenant as of the date
hereof or immediately prior to such merger or purchase, whichever is
greater (as evidenced by financial information submitted and reasonably
acceptable to Landlord). As a further condition to and prior to or
simultaneously with any such assignment, such Affiliated Entity shall
execute and deliver to Landlord an agreement in form and substance
reasonably acceptable to Landlord whereby the assignee agrees to be bound
by and to assume the obligations of the tenant under this Lease.
6.3 Further Limitations. In no event shall Landlord be obligated either to
consent to any proposed assignment or subletting or to elect to terminate
this Lease if at the time of proposal of assignment or subletting, Tenant
is in default under any terms of this Lease. If Landlord fails to respond
to Tenant's request for consent to any assignment or sublease within thirty
(30) days of receipt of Tenant's request therefor, and such failure
continues for ten (10) days after a reminder notice from Tenant to
Landlord, Landlord shall be deemed to have consented to the assignment or
sublease in question. Anything contained in the foregoing provision of this
Article to the contrary notwithstanding, neither Tenant nor any other
person having an interest in the possession, use, occupancy or utilization
of the Premises shall enter into any lease, sublease, license, concession
or other agreement for use, occupancy or utilization of space in the
Premises which provides for rental or other payment for such use, occupancy
or utilization based, in whole or in part, on the net income or profits
derived by any person from the Premises leased, used, occupied or utilized
(other than an amount based on a fixed percentage or percentages of
receipts or sales), and any such purported lease, sublease, license,
concession or other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Premises.
ARTICLE VII
CASUALTY AND TAKING
7.1 Casualty and Taking. If, during the Term, all or any substantial part
of the Premises, the Building or the Property is damaged materially by fire
or other casualty or taken by eminent domain or by action of public or
other authority in consequence thereof, or Landlord receives compensable
damage by reason of anything lawfully done in pursuance of public or other
authority, this Lease shall terminate at Landlord's election, which may be
made notwithstanding Landlord's entire interest may have been divested, by
notice given to Tenant within thirty-seven (37) days after such casualty or
taking specifying the effective date of termination which shall not be less
than thirty (30) nor more than sixty (60) days after the date of notice of
such termination.
If in any such case the Premises, the Building or the Property are rendered
unfit for use and occupancy and this Lease is not terminated, Landlord
shall use due diligence to restore the same or, in case of taking, what may
remain thereof (excluding in each case any items installed or paid for by
Tenant which Tenant may be required or permitted to remove) to
substantially the same condition as existed immediately prior to such fire
or other casualty or taking to the extent permitted by laws and ordinances
then in effect and by the net award of insurance or damages actually
received by Landlord, and a just proportion of the rent, according to the
nature and extent to which the Premises have been rendered untenantable,
shall be abated until the substantial completion of such work.
7.2 Reservation of Award. Landlord reserves to itself any and all rights to
receive awards made for damages to the Premises, the Building, the Property
and the leasehold hereby created, or any one or more of them, accruing by
reason of exercise of eminent domain or by anything lawfully done pursuant
to public or other authority. Tenant hereby releases and assigns to
Landlord all Tenant's rights to such awards, and covenants to deliver such
further assignments and assurances thereof as Landlord may from time to
time request. It is agreed and understood, however, that Landlord does not
reserve to itself, and Tenant does not assign to Landlord, any damages
payable for movable trade fixtures installed by Tenant or anybody claiming
under Tenant at its own expense or relocation expenses recoverable by
Tenant from such authority in a separate action, provided said award does
not diminish Landlord's award in any way.
7.3 Tenant's Termination Rights.
(a) If the Premises or any portion thereof are damaged by fire or other
casualty or taking, Landlord shall notify Tenant (the "Damage Notice") in
writing within thirty-seven (37) days of the occurrence of the damage as to
whether (i) the repair of such damage is susceptible of being substantially
completed within one hundred eighty (180) days after the occurrence
(Landlord hereby agreeing to submit to Tenant with the Damage Notice an
engineering estimate as to the length of time necessary to substantially
complete the repair of such damage, such estimated repair period being
hereinafter referred to as the "Estimated Repair Period"), (ii) sufficient
insurance proceeds or condemnation awards (together with other funds which
Landlord may commit) will be available for the repair of such damage, and
(iii) in the case of damage by fire or other casualty (and not by taking),
less than ninety percent (90%) of the rentable area of the Premises
existing immediately prior to the damage will be available for Tenant's use
and occupation after the repair of such damage is completed. If (x) the
damage to the Premises or any portion thereof shall materially adversely
interfere with the conduct of Tenant's business in the Premises in the
ordinary course as reasonably determined by Tenant, and the Estimated
Repair Period is in excess of one hundred eighty (180) days after the
occurrence of such damage, or (y) the Damage Notice states that there will
not be sufficient insurance proceeds or condemnation awards (together with
other funds which Landlord may commit) available for the repair of such
damage, or (z) in the case of damage by fire or other casualty (and not by
taking), the Damage Notice states that less than ninety percent (90%) of
the rentable area of the Premises existing immediately prior to the damage
will be available for Tenant's use and occupation after the repair of such
damage is completed, then Tenant may, by written notice to Landlord within
fifteen (15) days after the giving of the Damage Notice to Tenant,
terminate this Lease as of the date of occurrence of such damage. If such
damage can be repaired within one hundred eighty (180) days from the date
of occurrence of the damage, this Lease is not terminated, and Landlord
fails to substantially complete the repairs within such period without
fault or neglect of Tenant or its agents, employees or contractors, then
Tenant may terminate this Lease by giving written notice to Landlord, in
which case this Lease shall terminate thirty (30) days after the giving of
such termination notice unless within such thirty (30) day period Landlord
substantially completes said repairs. If the Estimated Repair Period is in
excess of one hundred eighty (180) days from the date of occurrence of the
damage, this Lease is not terminated, and Landlord fails to substantially
complete the repairs within the Estimated Repair Period without fault or
neglect of Tenant or its agents, employees or contractors, then Tenant may
terminate this Lease by giving written notice to Landlord, in which case
this Lease shall terminate thirty (30) days after the giving of such
termination notice unless within such thirty (30) day period Landlord
substantially completes said repairs.
(b) If, during the Term, all or any part of the Premises or the Garage or
access thereto are taken by eminent domain or by action of public or other
authority in consequence thereof, and such taking materially adversely
interferes with Tenant's business operations in the Premises in the
ordinary course, then Tenant shall have the right to terminate this Lease
by notice given to Landlord within thirty-seven (37) days after such taking
specifying the effective date of termination which shall not be less than
thirty (30) nor more than sixty (60) days after the date of notice of such
termination.
ARTICLE VIII
DEFAULTS; EVENTS; REMEDIES
8.1 Events of Default. The occurrence of any one of the following
events shall constitute a default of this Lease by Tenant:
8.1.1 Failure of Tenant to make any payment of rent or other required
payment (including parking charges) when due, and such failure continues
for a period of ten (10) days after receipt by Tenant of written notice
from Landlord;
8.1.2 Failure of Tenant to comply with any provision of this Lease, other
than payment of rent, and such failure shall continue for thirty (30) days
after receipt by Tenant of written notice from Landlord; provided, however,
that if the nature of Tenant's default is such that more than thirty (30)
days are reasonably required for its cure, Tenant shall not be in default
if Tenant commences such cure within thirty (30) days and diligently
pursues such cure to completion;
8.1.3 The making of an assignment or general arrangement for the benefit of
creditors by Tenant or any guarantor of Tenant's obligations hereunder, or
the appointment of a receiver or trustee for all or substantially all the
assets of Tenant or any guarantor of Tenant's obligations hereunder and
such receivership shall not have been terminated or stayed within ninety
(90) days, or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located in the Premises or Tenant's
interest in this Lease where such seizure is not discharged within thirty
(30) days;
8.1.4 The filing by Tenant or any guarantor of Tenant's obligations
hereunder of petition under any bankruptcy or insolvency Law; or the filing
of such a petition against Tenant or such guarantor which is not dismissed
within ninety (90) days; or
8.1.5 Using the Premises for other than the Permitted Use, if such
use continues for a period of seven (7) days after receipt by Tenant of
written notice from Landlord.
8.2 Remedies in Event of Default. Landlord or its servants and agents may,
in addition to and not in derogation of any remedies for any preceding
breach of any covenant, immediately or at any time thereafter while such
default continues and without further notice, at Landlord's election, do
any one or more of the following: (1) give Tenant written notice stating
that the Lease is terminated effective upon the giving of such notice or
upon a date stated in such notice, as Landlord may elect, in which event
the Lease shall be irrevocably extinguished and terminated as stated in
such notice without any further action or (2) with or without process of
law, in a lawful manner, enter and repossess the Premises, and expel Tenant
and those claiming through or under Tenant, and remove its and their
effects, without being guilty of trespass, in which event this Lease shall
be irrevocably extinguished and terminated at the time of such entry, or
(3) pursue any other rights or remedies permitted by law. Any such
termination of this Lease shall be without prejudice to any remedies which
might otherwise be used for arrears of rent or prior breach of any covenant
and in the event of such termination, Tenant shall remain liable under this
Lease as hereinafter provided. Tenant hereby waives all statutory rights
(including, without limitation, rights of redemption, if any) to the extent
such rights may be lawfully waived, and Landlord without notice to Tenant
may store Tenant's effects and those of any person claiming through or
under Tenant at the expense and risk of Tenant and, if Landlord so elects,
may sell such effects at public auction or private sale and apply the net
proceeds to the payment of all sums due to Landlord from Tenant, if any,
and pay over the balance if any, to Tenant.
8.3 Tenant's Obligations After Termination. In the event that this Lease is
terminated for breach of any obligation of Tenant, Tenant covenants to pay
forthwith to Landlord, as compensation, the excess (discounted to present
value at the prime rate then being offered by the largest commercial bank
in the United States) of the total rent due for the residue of the Term
over the fair market rental value of the Premises for said residue of the
Term. Tenant further covenants to pay punctually to Landlord all the sums
and perform all the obligations which Tenant covenants in this Lease to pay
and to perform in the same manner and to the same extent and at the same
time as if this Lease had not been terminated; however, Tenant shall be
credited with any amount paid to Landlord as compensation as provided in
the first sentence of this Section 8.3 and also with the net proceeds of
any rents obtained by Landlord by reletting the Premises, after deducting
all Landlord's expenses in connection with such reletting, including,
without implied limitation, all repossession costs, brokerage commissions,
fees for legal services and expenses of preparing the Premises for such
reletting, it being agreed by Tenant that Landlord may relet the Premises
or any part or parts thereof on such terms as Landlord seems fit, and make
such alterations or repairs in the Premises as Landlord in its sole
judgment considers necessary to relet the same and no action of Landlord in
accordance with the foregoing or failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce Tenant's
liability as aforesaid.
ARTICLE IX
RIGHTS OF MORTGAGEE/GROUND LESSOR
9.1 Subordination and Attornment.
(a) This Lease and the rights of Tenant hereunder are subject and
subordinate in all respects to all mortgages and ground leases which may
now or hereafter be placed on or affect all or any part of the real
property of which the Premises are a part and/or Landlord's interest or
estate in such real property or ground leases, and to each advance made
and/or hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor. Notwithstanding anything to the contrary in this
Article IX contained, as to any future mortgages or ground leases, the
herein provided subordination and attornment shall be effective only if the
mortgagee or ground lessor therein, as the case may be, agrees, by a
written instrument in recordable form and otherwise in a form reasonably
acceptable to Tenant and such mortgagee or ground lessor, that, as long as
Tenant shall not be in terminable default of the obligations on its part to
be kept and performed under the terms of this Lease, this Lease will not be
affected and Tenant's possession hereunder will not be disturbed by any
default under and/or foreclosure or termination of such mortgage or ground
lease. Tenant acknowledges and agrees that the form of subordination,
non-disturbance and attornment agreement attached hereto as Exhibit D is
acceptable to Tenant for future mortgages and ground leases.
(b) The term "mortgage" as used in this Lease shall include any mortgage or
deed of trust. The term "mortgagee" as used in this Lease shall include any
mortgagee or any trustee and beneficiary under a deed of trust or receiver
appointed under a mortgage or deed of trust, including, without limitation,
all persons or entities which may acquire Landlord's interest in the
Property or any part thereof by purchase at foreclosure or deed or
acquisition in lieu thereof, and all successors in title to such persons or
entities.
9.2 No Prepayment of Rent. Tenant acknowledges that this Lease has been or
may be assigned from time to time by Landlord as collateral security for
Landlord's obligations under one or more mortgages. No fixed rent,
additional rent or any other charge shall be paid more than thirty (30)
days prior to the due date thereof and payments made in violation of this
provision shall (except to the extent that such payments are actually
received by a mortgagee) be a nullity as against any mortgagee and Tenant
shall be liable for the amount of such payments to such mortgagee taking
possession of the Building.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Title. The titles of the Articles are for convenience and are not
to be considered in construing this Lease.
10.2 Notices. Whenever, by the terms of this Lease, notice shall or may be
given either to Landlord or to Tenant, such notice shall be in writing,
addressed, if to Landlord, at Landlord's address in Section 1.1 or, if to
Tenant, at Tenant's address in Section 1.1, or such other address as last
designated in writing by either Landlord or Tenant, and shall be deemed
duly given if deposited with or picked up by an overnight delivery service
or deposited with the U.S. Postal Service by registered or certified mail,
postage prepaid. Any notice given by an agent or attorney of Landlord shall
be deemed notice given by Landlord.
In the event a notice mailed with sufficient postage as above provided
shall not be received upon attempted delivery thereof to the proper address
and shall be returned by the Postal Service to the sender because of a
refusal of receipt, the absence of a person to receive, or otherwise, the
time of the giving of such notice shall be the time of such attempted
delivery.
10.3 Bind and Inure. The obligations of this Lease shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Landlord named herein and each
successive owner of the Premises shall be liable only for the obligations
accruing during the period of its ownership. Whenever the Premises are
owned by a trustee or trustees, the obligations of Landlord shall be
binding upon Landlord's trust estate, but not upon any trustee, beneficiary
or shareholder of the trust individually.
10.4 Partial Invalidity. If any term of this Lease, or the application
thereof to any person or circumstances, shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such term
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term of this Lease
shall be valid and enforceable to the fullest extent permitted by law.
10.5 No Waiver. No provisions of this Lease shall be deemed to have been
waived by Landlord or Tenant unless such waiver is in writing signed by the
applicable party waiving its rights. The failure of Landlord or Tenant to
seek redress for violation of, or to insist upon the strict performance of,
any covenant, condition or rule of this Lease, or in the case of Landlord,
failure to enforce any Rules or Regulation against Tenant or any other
tenant, shall not be deemed a waiver of such breach or prevent a subsequent
act, which would have originally constituted a breach, from having the
effect of any original breach. Landlord's receipt of rent with knowledge of
a breach by Tenant of any term or condition of this Lease shall not be
deemed a waiver of such breach.
10.6 No Surrender. No act or thing done by Landlord, its agents or
employees during the term of this Lease shall be deemed an acceptance of a
surrender of the Premises or shall be valid unless in writing signed by
Landlord. The delivery of keys to any of Landlord's agents or employees
shall not operate as a termination of this Lease or a surrender of the
Premises.
10.7 No Accord and Satisfaction. No payment by Tenant, or receipt by
Landlord, of a lesser amount than the rent due shall be deemed to be other
than on account and as allocated in Landlord's sole discretion, nor shall
any endorsement or statement on any check or any letter accompanying or
such payment be deemed an accord and satisfaction and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy available to Landlord.
10.8 Intentionally Deleted.
10.9 Self-Help.
(a) Landlord may, but shall not be obligated to, cure, at any time, without
notice in case of emergency, or on reasonable notice in cases other than an
emergency, any failure of Tenant to fully comply with any of its
obligations or duties under this Lease, and/or any default or breach by
Tenant under this Lease beyond the expiration of applicable notice and cure
periods; and whenever Landlord so elects, all costs and expenses incurred
by Landlord, including, without limitation reasonable attorney's fees,
together with interest on the amount of costs and expenses so incurred at
the rate of twelve percent (12%) per annum, shall be paid by Tenant to
Landlord forthwith on demand, and shall be recoverable as additional rent.
(b) If Landlord shall fail to make any repair required to be made by
Landlord under this Lease, and such failure shall continue for thirty (30)
days after receipt by Landlord of written notice from Tenant (or such
additional time as is reasonably required to make such repair if Landlord
commences such repair within such thirty (30) day period and diligently
pursues such repair to completion), Tenant may, but shall not be obligated
to, upon prior written notice to Landlord, perform such repair on
Landlord's behalf. If Tenant exercises such right, Landlord shall reimburse
Tenant for the reasonable costs and expenses incurred by Tenant in making
such repair. If Landlord fails to reimburse Tenant for such reasonable
costs and expenses within thirty (30) days after written notice from Tenant
to Landlord, Tenant shall have the right to offset against rent such
reasonable costs and expenses so incurred by Tenant. Any sum so reimbursed
by Landlord to Tenant or offset against rent may be included in Operating
Costs to the extent the cost of the repair would have been included in
Operating Costs if the repair were performed by Landlord itself.
10.10 Estoppel Certificates. Tenant shall, without charge, at any time and
from time to time (but no more than five (5) times per calendar year),
within ten (10) days after written request by Landlord, certify by written
instrument (in recordable form if requested) duly executed, acknowledged
and delivered to Landlord, or to any mortgagee or proposed mortgagee, or
any purchaser or proposed purchaser, or to any other entity reasonably
specified by Landlord:
(1) The Term Commencement Date, the original expiration date, the present
expiration date, and the existence, number, and term of any option periods.
(2) Whether or not, to Tenant's actual knowledge, Landlord is in default,
in any way, in the performance of any of the covenants, conditions and
agreements to be performed by Landlord in accordance with this Lease and if
there is any such default alleged, specifying the nature of same.
(3) What the amount of rent is pursuant to the terms of this Lease, and the
dates, if any, to which the rental and other charges hereunder have been
paid in advance.
(4) That this Lease is unmodified and in full force and effect, or in the
event that there have been modifications, that the same is in full force
and effect as modified and setting forth the modifications.
(5) Whether or not, to Tenant's actual knowledge, there are then existing
any claims, setoffs or defenses against the enforcement of any of the
agreements, terms, covenants or conditions hereof upon the part of Tenant
to be performed or complied with, and if so, specifying the same.
(6) The status of any other matter relative to this Lease or the relation
of the parties, reasonably requested. 10.11 Waiver of Subrogation. Property
insurance carried by either party with respect to the Premises and property
therein or occurrences thereon shall include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence of injury
or loss. Each party, notwithstanding any provisions of this Lease to the
contrary, hereby waives any rights of recovery against the other for injury
or loss due to hazards covered by property insurance containing such clause
or endorsement carried (or required hereunder to be carried, without regard
to rights of self-insurance) by such party.
10.12 Governing Law. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the State in which the Premises are
located, as said laws may from time to time exist.
10.13 Acts of God. In any case where either party is required to do any
act, delays caused by or resulting from Acts of God, war, civil commotion,
fire, flood or other casualty, labor difficulties, shortages of labor or
materials or equipment in the ordinary course of trade, government
regulations or other causes not reasonably within such party's control
shall not be counted in determining the time during which such act shall be
completed, whether such time be designated by fixed date, a fixed time or
"a reasonable time", and such time shall be deemed to be extended by the
period of such delay. Financial inability of either party shall not be
considered to be a circumstance or cause beyond the reasonable control of
such party.
10.14 Consent. Unless otherwise specifically provided herein, whenever
consent or approval of Landlord or Tenant is required under the terms of
this Lease, such consent or approval shall not be unreasonably withheld or
delayed. Each party's sole remedy if the other party unreasonably withholds
or delays consent or approval shall be an action for specific performance
and such other party shall not be liable for damages. If either party
withholds any consent or approval, such party shall on written request
deliver to the other party a written statement giving the reasons therefor.
10.15 Brokerage Commissions. Each party warrants that it has had no
dealings with any broker or agent in connection with the negotiation or
execution of this Lease other than the broker named in Section 1.1. Each
party agrees to indemnify the other and hold the other harmless from and
against any and all costs, expenses, claims or liability arising in breach
of the foregoing warranty. Landlord agrees to pay the broker named in
Section 1.1.
10.16 Intentionally Deleted.
10.17 Limitation of Liability. In the event Landlord shall default in the
performance of its obligations hereunder, Tenant agrees to look only to
Landlord's then equity interest in the Building for the satisfaction of any
judgment. In no event shall Landlord be liable for any lost profits or
indirect or consequential damages, and if Landlord is a partnership or
trust, no general or limited partner of such partnership nor any trustee or
beneficiary of any Trust shall be liable but Landlord alone shall be liable
and then as limited hereby to Landlord's then equity interest in the
Building.
10.18 Intentionally Deleted.
10.19 Recording. Neither party shall record this Lease but each party
shall, at the request of the other made at any time after the Term
Commencement Date is known, execute a memorandum or notice thereof in
recordable form satisfactory to both Landlord and Tenant specifying the
Term Commencement Date and Expiration Date of the term of this Lease and
other information required by statute. The requesting party may then record
said memorandum or notice of lease.
10.20 Intentionally Deleted.
10.21 Term Commencement Date. For purposes of this Lease, the "Term
Commencement Date" shall be defined as the earlier of (A) the first date on
which Tenant occupies all or any part of the Premises for the conduct of
business, or (B) fourteen (14) days after the date on which both of the
following shall occur: (i) Landlord's Work shall be (or be deemed to be)
substantially completed (notwithstanding the incompleteness of (x)
so-called "punch list" items, (y) work to be undertaken by Landlord which
does not materially impair Tenant's use of the Premises for the purposes
allowed herein, and (z) finishes and exterior landscaping to the Property),
and (ii) a certificate of occupancy has been (or is deemed to have been)
issued with respect to the Premises (or the building inspector has (or is
deemed to have) provided a verbal "sign off" on Landlord's Work and
indicated that a certificate of occupancy will issue in due course). If
Tenant (or any agent, employee or contractor of Tenant) causes any delay in
the performance or substantial completion of Landlord's Work (including,
without limitation, by failing to timely prepare the Construction
Drawings), then Landlord's Work shall be deemed to have been substantially
completed on the date that Landlord's Work would have been substantially
completed but for such delay, and the certificate of occupancy for the
Premises (or building inspector "sign off" as aforesaid) shall be deemed to
have been issued (or provided) on the date it would have been issued (or
provided) but for such delay. Landlord shall use reasonable efforts to
substantially complete Landlord's Work by the date (as the same may be
modified by Landlord at or prior to the time of its approval of the
Construction Drawings as provided in the second paragraph of Section 10.22,
the "Estimated Substantial Completion Date") which is ninety (90) days
after Landlord's final approval of the Construction Drawings, but Tenant
shall not have any claim against Landlord, and Landlord shall have no
liability to Tenant, if Landlord's Work is not substantially completed by
the Estimated Substantial Completion Date. Notwithstanding the foregoing,
if Landlord fails to substantially complete Landlord's Work on or before
the date which is sixty (60) days after the Estimated Substantial
Completion Date due to Landlord's fault or neglect, then Tenant shall be
entitled to a credit (offset) against Base Rent due and payable as of the
Term Commencement Date in the amount of one (1) day of Base Rent for each
day after the Estimated Substantial Completion Date that Landlord's Work
shall not have been substantially completed.
10.22 Improvements. Landlord agrees to perform, at Landlord's expense
(except as hereinafter provided), the work ("Landlord's Work") within the
Premises described in or shown on, and substantially in accordance with,
the Construction Drawings.
Tenant shall, at its expense (except as provided in the next sentence),
prepare the construction drawings (the "Construction Drawings") for
Landlord's Work. Provided that Tenant is not in default under this Lease
beyond the expiration of applicable notice and cure periods and shall have
taken occupancy of the Premises for business, Landlord shall reimburse
Tenant up to $55,908.17 (the "Plan Allowance") for the architectural and
engineering fees incurred by Tenant in preparing the Construction Drawings,
such reimbursement to be made within thirty (30) days of Landlord's receipt
of a reasonably detailed invoice from Tenant describing such fees. The
Construction Drawings shall be subject to Landlord's approval; and Landlord
shall have the right, by notice to Tenant at or prior to the time of its
approval of the Construction Drawings, to modify the Estimated Substantial
Completion Date based upon the nature of the work shown on the Construction
Drawings. Tenant agrees that the Construction Drawings shall be prepared in
a diligent and efficient manner so that Landlord's final approval thereof
is obtained by March 15, 1998.
Tenant acknowledges and agrees that the general contractor for Landlord's
Work shall be Xxxxxxxx Xxxxxxxx & Xxxxxx Inc. ("BB&E"). The general
contractor's fee to be charged by BB&E shall not exceed three (3%) percent
of the aggregate costs of Landlord's Work; and the general conditions
component of the costs of Landlord's Work shall not comprise more than six
(6%) percent of the aggregate costs of Landlord's Work. Landlord agrees to
require BB&E to obtain, to the extent reasonably obtainable, bids from no
more than five (5) and no less than three (3) subcontractors for all trades
necessary to complete Landlord's Work. All subcontractor bids shall be
subject to Tenant's approval. If Tenant fails to respond to a request for
approval of a subcontractor bid within three (3) business days of
Landlord's request therefor, such approval shall be deemed given.
Landlord agrees to undertake construction of the Premises in accordance
with the provisions hereof in a good and workmanlike fashion and in
compliance with applicable codes. Without limiting the foregoing, Landlord
shall, at its expense (in addition to the Plan Allowance and Landlord's
Contribution, as hereinafter defined), cause the restrooms on each floor of
the Premises to comply with the ADA as in effect on the date hereof.
Tenant's vendors and contractors shall be permitted entry to the Premises
prior to the Term Commencement Date for the installation of Tenant's
equipment and furnishings (including cabling and wiring) and the
performance of such other work as Tenant may desire (subject to the
provisions of Section 5.5 hereof), provided that such installation and
other work shall not unreasonably interfere with the performance of
Landlord's Work. Landlord shall use reasonable efforts to coordinate and
schedule Landlord's Work so that Tenant may perform its work on a
floor-by-floor basis.
In the event that Tenant shall request and Landlord shall approve
supplementary plans or specifications or work or changes to the
Construction Drawings, then Landlord shall render to Tenant an estimate of
the additional cost of such plans or specifications, work or changes and
(unless such cost, when added to the other costs of Landlord's Work, will
not exceed Landlord's Contribution) Tenant shall pay such amount to
Landlord prior to Landlord having any obligation to undertake any such
work; provided, however, that Tenant shall be responsible for any delays in
the performance or substantial completion of Landlord's Work on account of
any such supplementary plans or specifications, work or changes requested
by Tenant. Landlord shall notify Tenant of any such delays, and of any
delays caused by any change order requests initiated by Landlord, promptly
upon Landlord becoming aware of the same. The costs and expenses to prepare
any supplementary plans or specifications or to make any changes to the
Construction Drawings shall be Tenant's responsibility. Landlord shall
respond to any request for approval under this paragraph within three (3)
business days of Tenant's written request therefor; and if Landlord fails
to respond within such three (3) business day period, Landlord's approval
of the supplementary plans or specifications or work or the changes to the
Construction Drawings shall be deemed given.
Landlord shall contribute $17.50 per square foot of rentable area of the
Premises ("Landlord's Contribution") towards the costs of Landlord's Work,
which costs shall include, without limitation, demolition costs and the
costs, if any, incurred by Landlord to engage an architect or engineer to
review the Construction Drawings to determine their compliance with the
ADA. Tenant shall reimburse Landlord for all costs of Landlord's Work in
excess of Landlord's Contribution within thirty (30) days of billing(s)
from time to time (whether before or after the Term Commencement Date)
therefor (accompanied by documentation supporting such excess costs). If
Landlord's Contribution exceeds the costs of Landlord's Work and Tenant is
not in default under this Lease beyond the expiration of applicable notice
and cure periods, such excess shall, at Tenant's election, be paid by
Landlord to Tenant within thirty (30) days of Tenant's notice to Landlord
of such election or be credited against Tenant's obligation to pay Base
Rent until such excess is reduced to zero.
10.23 Electricity.
(a) Except as provided in this Section 10.23, Landlord shall furnish to
Tenant, as an incident of this Lease, electric current for normal office
equipment comprising a combined lighting and standard electrical load not
to exceed 6 xxxxx per square foot.
(b) In the event that Landlord shall in its reasonable discretion determine
that Tenant is at any time using or proposing to use equipment which is
other than normal office equipment of the type described in subsection
10.23(a) or is, on a regular basis, using electric current during other
than Normal Building Operating Hours, Landlord may at its option either (i)
install at Tenant's expense or require Tenant to install separate electric
metering for such equipment in which event Tenant shall pay the cost of
such separately metered electricity or (ii) reasonably and equitably charge
to Tenant a fair increment specially allocable to Tenant's use in which
event the increment charged to Tenant shall not be includable as an
Operating Cost under Article III. Without limiting the foregoing, Landlord
reserves the right, at Tenant's expense, to submeter for electricity and/or
chilled water any computer or other room(s) in the Premises using or
requiring special heating or cooling equipment, and Tenant shall pay for
all electricity and chilled water so submetered and subsequently billed by
Landlord to Tenant from time to time.
(c) If Tenant shall require electric current for use in the Premises in
excess of the quantity to be furnished for such use as hereinabove provided
and if (i) in Landlord's reasonable judgment Landlord's facilities are
inadequate for such excess requirements or (ii) such excess use shall
result in an additional burden on the Building heating/air conditioning
system or electrical system and additional cost to Landlord on account
thereof then, as the case may be, (x) Landlord, upon written request and at
the sole cost and expense of Tenant, will furnish and install such
additional wire, conduits, feeders, switchboards and appurtenances as
reasonably may be required to supply such additional requirements of Tenant
if current therefor be available to Landlord, provided that the same shall
be permitted by applicable laws and insurance regulations and shall not
cause damage or injury to the Building or the Premises or cause a dangerous
or hazardous condition or entail excessive or unreasonable alterations or
repairs or interfere with or disturb other tenants or occupants of the
Building, or (y) Tenant shall reimburse Landlord for such additional cost,
as aforesaid.
(d) Tenant agrees that it will not make any material alteration or material
addition to the electrical equipment and/or appliances in the Premises
without the prior written consent of Landlord in each instance first
obtained, which consent will not be unreasonably withheld.
(e) Notwithstanding the provision of Section 10.23(a) through (d), in the
event a separate meter or meters is (are) installed which measure(s)
electric current, Tenant agrees to pay for all such electricity so metered
and subsequently billed. An amount equal to seventy-five cents ($.75) per
square foot of the Premises shall be deducted from Tenant's Base Rent
specified in Article I, beginning with the date Tenant's electric liability
is separately metered and charged to Tenant hereunder.
10.24 Option To Extend. Tenant shall have the option to extend the Term of
this Lease for two (2) successive terms of five (5) years each (each being
referred to as an "extended term"). The option shall be exercised only by
notice no more than twelve (l2) months and no less than nine (9) months
prior to the expiration of the original Term or the first extended term, as
the case may be. Said notice shall be effective only if given in the timely
manner described; however, Tenant's exercise of its option may be deemed
void in Landlord's sole discretion if Tenant is not occupying the Premises
for the Permitted Use, is in default under the terms of this Lease either
on the date of the notice or on the date of the expiration of the original
Term or of the first extended term, as the case may be, or has assigned
this Lease or sublet more than fifty percent (50%) of the Premises (other
than to an Affiliated Entity). The demise of the Premises for each extended
term shall be on the same terms and conditions as the original Term or the
first extended term, as the case may be, except that Landlord shall have no
obligation to construct or renovate the Premises or to provide any
allowance or contribution with respect thereto and the charge for all
parking passes to be used during the extended term shall be at the then
current prevailing rate in the Garage, as such rate may vary from time to
time (but not less than the highest rate being charged to Tenant for its
parking passes as of the expiration of the then current Term of this
Lease), and except that the Base Rent, the Operating Costs for the Base
Calendar Year and the Real Estate Taxes for the Base Calendar Year during
such extended term shall be as set forth hereinafter. All other items of
additional rent shall be the same. Once the Term is duly extended, any
reference in this Lease to the "term" or "Term" of this Lease shall mean
the Term as so extended. If Tenant fails to give timely notice, as
aforesaid, Tenant shall have no further right to extend the Term of this
Lease, time being of the essence in respect of this Section 10.24. Tenant
shall have no option to extend the Term of this Lease other than the two
(2) additional five (5) year terms herein provided for. Notwithstanding the
fact that, upon Tenant's exercise of the herein option to extend the Term
of this Lease, such extension(s) shall be self-executing, as aforesaid, the
parties shall promptly execute a lease amendment reflecting such extended
term after Tenant exercises the option in question and the Base Rent,
Operating Costs for the Base Calendar Year and Real Estate Taxes for the
Base Calendar Year during such extended term are determined.
The Base Rent for each extended term shall be 95% of the fair market rental
value (as hereinafter defined) of the Premises as of the commencement date
of such extended term. However, in no event shall the sum of the Base Rent
and amounts required to be paid by Tenant on account of Operating Costs and
Landlord's Tax Expense for any twelve (12) month period during such
extended term be less than the sum of the Base Rent and amounts required to
be paid by Tenant on account of Operating Costs and Landlord's Tax Expense
for the twelve (12) month period immediately preceding the commencement of
such extended term.
"Fair market rental value" shall be computed as of the date in question at
the then current annual rental charge (i.e., the sum of Base Rent plus
escalation and other charges), including provisions for subsequent
increases and other adjustments, for leases or agreements to lease then
currently being negotiated or executed for comparable space located in
first-class buildings (including the Building) in downtown Hartford. In
determining fair market rental value, the following factors, among others,
shall be taken into account and given effect: size, location of premises,
lease term, building amenities, finishes and condition of building, tenant
improvement allowances, creditworthiness of the landlord and the tenant,
availability of exterior signage, and services provided by the landlord.
Notwithstanding anything to the contrary herein contained, the parties
hereby agree that, upon the determination of any fair market rental value,
Operating Costs for the Base Calendar Year and Real Estate Taxes for the
Base Calendar Year shall be changed from that stated in Section 1.1 above
to an amount equal to the actual amount of Operating Costs and Landlord's
Tax Expense, respectively, for the calendar year immediately preceding the
calendar year in which the commencement date of the extended term occurs.
In such event, the amount of Base Rent payable hereunder shall be
commensurately adjusted to reflect such change in such base years.
Landlord shall initially designate fair market rental value and Landlord
shall furnish data in support of such designation. If Tenant disagrees with
Landlord's designation of a fair market rental value, Tenant shall have the
right, by written notice given within thirty (30) days after Tenant has
been notified of Landlord's designation, to submit such fair market rental
value to appraisal. Fair market rental value shall be submitted to
appraisal as follows: fair market rental value shall be determined by
impartial MAI appraisers, one to be chosen by Landlord, one to be chosen by
Tenant, and a third to be selected, if necessary, as below provided. The
unanimous written decision of the two first chosen, without selection and
participation of a third appraiser, or otherwise, the written decision of a
majority of three appraisers chosen and selected as aforesaid, shall be
conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall
each notify the other of its chosen appraiser within ten (10) days
following the call for appraisal and, unless such two appraisers shall have
reached a unanimous decision within thirty (30) days after their
designation, they shall so notify the President of the Hartford Bar
Association (or such organization as may succeed to said Hartford Bar
Association) and request him or her to select an impartial third MAI
appraiser to determine fair market rental value as herein defined. Such
third appraiser and the first two chosen shall hear the parties and their
evidence and render their decision within thirty (30) days following the
conclusion of such hearing and notify Landlord and Tenant thereof. Landlord
and Tenant shall bear the expense of the third appraiser (if any) equally.
The decision of the appraisers shall be binding and conclusive, and
judgment upon the award or decision of the arbitrators may be entered in
the appropriate court of law; and the parties consent to the jurisdiction
of such court and further agree that any process or notice of motion or
other application to such court or a Judge thereof may be served outside
the State of Connecticut by registered mail or by personal service,
provided a reasonable time for appearance is allowed. If the dispute
between the parties as to a fair market rental value has not been resolved
before the commencement of Tenant's obligation to pay rent based upon such
fair market rental value, then Tenant shall pay Base Rent and other charges
under this Lease in respect of the premises in question based upon the fair
market rental value designated by Landlord until either the agreement of
the parties as to the fair market rental value, or the decision of the
appraisers, as the case may be, at which time Tenant shall pay any
underpayment of rent and other charges to Landlord, or Landlord shall
refund any overpayment of rent and other charges to Tenant.
10.25 Hazardous Materials. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any
biologically or chemically active or other hazardous substances or
materials. Tenant shall not allow the storage or use of such substances or
materials in any manner not sanctioned by law or by the highest standards
prevailing in the industry for the storage and use of such substances or
materials, nor allow to be brought into the Premises or Building or land on
which the Building is located any such materials or substances except to
use in the ordinary course of Tenant's business, and then only after
written notice is given to Landlord of the identity of such substances or
materials. Without limitation, hazardous substances and materials shall
include those described in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601
et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq., any applicable state or local laws and the
regulations adopted under these acts. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been any
release of hazardous materials and such testing concludes that Tenant or
its agents, employees, contractors, invitees or others claiming by, through
or under Tenant caused such release, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as additional
charges. In addition, Tenant shall execute affidavits, representations and
the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of hazardous substances or
materials on the Premises. In all events, Tenant shall indemnify Landlord
and its agents and employees in the manner elsewhere provided in this Lease
from any release of hazardous materials on the Premises occurring while
Tenant is in possession, or elsewhere if caused by Tenant or persons acting
under Tenant. The within covenants shall survive the expiration or earlier
termination of the term of this Lease. Landlord represents and warrants
that, to Landlord's knowledge, the Building is free of any material
concentrations of hazardous substances or materials. Landlord shall
indemnify Tenant against any liability incurred by Tenant arising as a
result of (i) a breach of the representation and warranty contained in the
preceding sentence, or (ii) the presence of hazardous substances or
materials in the Building not caused by Tenant or its agents, employees,
contractors, invitees or others claiming by, through or under Tenant.
10.26 Right of First Offer. On the conditions (which conditions Landlord
may waive, at its election, by written notice to Tenant at any time) that
Tenant is not in default of its covenants and obligations under this Lease
and that The Lincoln National Life Insurance Company, itself, or an
Affiliated Entity is occupying at least fifty percent (50%) of the Premises
then demised to Tenant, both at the time that Landlord is required to give
Landlord's Notice, as hereinafter defined, and as of the Term Commencement
Date in respect of the RFO Premises, as hereinafter defined, Tenant shall
have the following right to lease the RFO Premises, as hereinafter defined,
when the RFO Premises become available for lease to Tenant, as hereinafter
defined.
"RFO Premises" shall be defined as any separately demised area on the sixth
(6th) floor of the Building which is not leased by Tenant pursuant to
Section 10.27 below and becomes available for lease to Tenant during the
Term of this Lease; provided, however, that if Tenant shall have exercised
its right to reduce the size of the Premises pursuant to Section 10.28
below, RFO Premises shall be defined as the Give-Back Premises (as
hereinafter defined) and any other separately demised area on the floor of
the Building below the lowest floor of the Building on which any portion of
the Premises is located, when the Give-Back Premises or such other area
becomes available for lease to Tenant during the initial Term of this
Lease. For the purposes of this Section 10.26, an RFO Premises shall be
deemed to be "available for lease to Tenant" if the existing tenant of such
RFO Premises has vacated or will vacate the same and when Landlord intends
to offer such RFO Premises for lease (it being understood and agreed that
in no event shall Tenant have any right to lease RFO Premises pursuant to
this Section 10.26 unless and until Landlord leases such RFO Premises to
another tenant and such tenant has vacated or will vacate the same and
Landlord intends to offer such RFO Premises for lease). Notwithstanding
anything to the contrary herein contained, (a) in no event shall Tenant
have any rights under this Section 10.26 after the date which is nine (9)
months prior to the expiration of the Term of this Lease (i.e., Landlord
shall have no obligation to give Landlord's Notice to Tenant after the date
which is nine (9) months prior to the expiration of the Term of this
Lease), and (b) Tenant's rights to lease RFO Premises shall be subject and
subordinate to the rights of then existing tenants of the Building to lease
such RFO Premises.
Landlord shall give Tenant written notice ("Landlord's Notice") at the time
that Landlord determines that an RFO Premises will become available for
lease to Tenant. Landlord's Notice shall set forth the terms upon which
Landlord intends to offer such RFO Premises for lease, including (i) the
size and exact location of such RFO Premises, (ii) the Base Rent applicable
to such RFO Premises, which shall be based upon the delivery of such RFO
Premises to Tenant in "as-is" condition, but shall be subject to adjustment
as provided in clause (2) below, and (iii) the estimated date of delivery
of such RFO Premises to Tenant in such condition. Tenant shall have the
right, exercisable upon written notice ("Tenant's Exercise Notice") given
to Landlord within fifteen (15) business days after the receipt of
Landlord's Notice, to lease the RFO Premises. If Tenant fails timely to
give Tenant's Exercise Notice, Tenant shall have no further right to lease
such RFO Premises pursuant to this Section 10.26; provided, however, that
the failure to give Tenant's Exercise Notice as to such RFO Premises shall
not waive Tenant's right to lease, pursuant to the provisions of this
Section 10.26, any other RFO Premises which thereafter become available for
lease to Tenant during the initial Term of this Lease until Tenant's right
to lease RFO Premises has lapsed.
Upon the timely giving of Tenant's Exercise Notice, Landlord shall lease
and demise to Tenant, and Tenant shall hire and take from Landlord, the RFO
Premises in question, upon the terms set forth in Landlord's Notice and
otherwise upon all of the same terms and conditions of this Lease, except
as follows:
(1) Term Commencement Date
The Term Commencement Date in respect of such RFO Premises shall be the
date that Landlord delivers such RFO Premises to Tenant (x) in the "as-is"
condition described in Landlord's Notice, or (y) if within the fifteen (15)
business day period referred to above Landlord and Tenant shall have agreed
upon work to be performed by Landlord to prepare such RFO Premises for
Tenant's occupancy, substantially in accordance with the plans and
specifications for such work, as the case may be. If Landlord and Tenant
shall not have agreed upon the scope of any such work to be performed by
Landlord within the fifteen (15) business day period referred to above,
then Tenant shall accept such RFO Premises in "as-is" condition unless
Tenant rescinds Tenant's Exercise Notice within two (2) business days after
the expiration of such fifteen (15) business day period, in which event
Tenant shall have no right to lease such RFO Premises from Landlord, and
Landlord shall be free to lease such RFO Premises to another party.
(2) Base Rent
The Base Rent rental rate in respect of such RFO Premises shall be the Base
Rent rental rate set forth in Landlord's Notice, which shall be based upon
Landlord's determination of the fair market rental value of such RFO
Premises, which determination shall take into account, among other things,
the condition in which such RFO Premises shall be delivered to Tenant,
including the cost of the work, if any, to be performed by Landlord with
respect thereto.
(3) Tenant's Proportionate Share
Tenant's Proportionate Share in respect of such RFO Premises shall be
determined by dividing the rentable area of such RFO Premises by the total
rentable area of the Building.
(4) Parking
The charge for parking passes in respect of such RFO Premises (which shall
be provided at the same ratio as then being offered to prospective tenants
of the Building) shall be at the then current prevailing rate in the
Garage, as such rate may vary from time to time. Tenant shall have no right
to additional reserved (i.e., as opposed to unassigned) parking spaces by
reason of the demise of such RFO Premises.
Notwithstanding the fact that Tenant's exercise of the above-described
option to lease RFO Premises shall be self-executing, as aforesaid, the
parties hereby agree to execute a lease amendment reflecting the addition
of an RFO Premises promptly after the exercise by Tenant of its right to
lease the same. The execution of such lease amendment shall not be deemed
to waive any of the conditions to Tenant's exercise of the herein option to
lease RFO Premises, unless otherwise specifically provided in such lease
amendment.
10.27 Right of First Refusal. If, within the first twelve (12) months of
the initial Term of this Lease, Landlord is in, or is about to enter into,
negotiations to lease space on the sixth (6th) floor of the Building and
Tenant is not then in default of its covenants and obligations under this
Lease and The Lincoln National Life Insurance Company, itself, or an
Affiliated Entity is occupying at least fifty percent (50%) of the Premises
then demised to Tenant, Landlord shall provide written notice to Tenant of
such negotiations, such notice to be directed to Xxxxxxx Xxxxxx, Vice
President-Director of Facilities, Lincoln National Corporation, 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000. Tenant shall have the right to lease
such space by written notice to Landlord within seven (7) business days
after Tenant's receipt of such notice from Landlord. If Tenant fails to
timely exercise such right (time being of the essence in respect of this
Section 10.27), Landlord shall have no obligation to lease such space to
Tenant pursuant to the terms of this Section 10.27. If Tenant timely
exercises such right, then Landlord shall lease such space to Tenant upon
the same terms and conditions of this Lease (including, without limitation,
the Expiration Date, the Base Rent rental rate then (and from time to time)
applicable to the other premises demised to Tenant under this Lease, the
right to parking passes at the same ratio provided for the other premises
then demised to Tenant under this Lease, and the obligation to pay charges
for parking passes at the rate then (and from time to time) applicable to
the other parking passes provided to Tenant under this Lease).
Notwithstanding the foregoing, (a) Landlord shall contribute towards the
cost of the build-out of such space and Tenant's costs to prepare the
Construction Drawings for such space an amount equal to $17.50 per rentable
square foot and $.43 per usable square foot (respectively) of such space,
in each case multiplied by a fraction, the numerator of which is the number
of full calendar months remaining in the initial Term of this Lease after
the commencement date of the leasing of such space, and the denominator of
which is one hundred twenty (120), (b) Tenant shall prepare the
Construction Drawings for the build-out of such space in a diligent and
efficient manner so that Landlord's final approval thereof is obtained no
later than forty-five (45) days after the giving to Landlord of Tenant's
notice exercising its right to lease such space, and (c) Tenant shall have
no right to additional reserved (i.e., as opposed to unassigned) parking
spaces by reason of the demise of such space. Notwithstanding the fact that
Tenant's exercise of the above-described right to lease such space shall be
self-executing, as aforesaid, the parties hereby agree to execute a lease
amendment reflecting the addition of such space promptly after the exercise
by Tenant of its right to lease the same. The execution of such lease
amendment shall not be deemed to waive any of the conditions to Tenant's
exercise of the herein right to lease such space, unless otherwise
specifically provided in such lease amendment. Notwithstanding anything to
the contrary herein contained, in no event shall Tenant have any rights
under this Section 10.27 if Tenant shall have previously exercised its
right to reduce the size of the Premises pursuant to Section 10.28 below.
10.28 Right to Reduce Space.
(a) On the condition (which condition Landlord may waive, at its election,
by written notice to Tenant at any time) that Tenant is not in default of
its covenants and obligations under this Lease, Tenant shall have the right
to reduce the size of the Premises by up to ten percent (10%) of the
rentable area thereof by written notice to Landlord prior to the
commencement of Landlord's Work. The portion of the Premises which Tenant
elects to give back to Landlord (the "Give-Back Premises") and the
remaining portion of the Premises on the floor(s) of the Building where the
Give-Back Premises are located shall be of a marketable configuration (as
determined by Landlord in its sole and absolute discretion) and otherwise
in a location reasonably acceptable to Landlord. If Tenant shall timely
exercise such right, (i) Tenant shall, within thirty (30) days of
billing(s) therefor (accompanied by supporting documentation), reimburse
Landlord for the costs and expenses incurred by Landlord in connection with
the proposed preparation of the Give-Back Premises for Tenant's occupancy,
and (ii) the parties shall promptly execute and deliver an amendment to
this Lease confirming the location of the Give-Back Premises and making any
changes to the terms and provisions of this Lease required as a result of
the Give-Back Premises no longer being part of the Premises (e.g.,
modification to Tenant's Proportionate Share). If Tenant fails to timely
exercise its right under this Section 10.28(a), Tenant shall have no right
to reduce the size of the Premises pursuant to this Section 10.28(a), time
being of the essence in respect of this Section 10.28(a).
(b) On the condition (which condition Landlord may waive, at its election,
by written notice to Tenant at any time) that Tenant is not in default of
its covenants and obligations under this Lease, and provided that Tenant
shall not have exercised its rights under Section 10.28(a) above, Tenant
shall have the right to reduce the size of the Premises by up to ten
percent (10%) of the rentable area thereof by written notice to Landlord on
or before the date which is nine (9) months after the Term Commencement
Date. The portion of the Premises which Tenant elects to give back to
Landlord (the "Give-Back Premises") and the remaining portion of the
Premises on the floor(s) of the Building where the Give-Back Premises are
located shall be of a marketable configuration (as determined by Landlord
in its sole and absolute discretion) and otherwise in a location reasonably
acceptable to Landlord. If Tenant shall timely exercise such right, Tenant
shall vacate and surrender the Give-Back Premises to Landlord as of the
date (the "Give-Back Premises Termination Date") which is ninety (90) days
after the giving of such notice to Landlord in the condition required by
the terms and provisions of this Lease (including, without limitation,
Section 5.2 hereof), and Tenant shall pay to Landlord, not later than
thirty (30) days prior to the Give-Back Premises Termination Date, the
Termination Fee (as hereinafter defined) and the costs and expenses (to be)
incurred by Landlord to separate the Give-Back Premises from the remainder
of the Premises. Base Rent and other charges in respect of the Give-Back
Premises shall be apportioned as of the Give-Back Premises Termination
Date. For purposes hereof, the "Termination Fee" shall be equal to the
product of (i) Landlord's Transaction Costs (as hereinafter defined)
multiplied by (ii) a fraction, the numerator of which is the number of
months (or portion thereof) from the Give-Back Premises Termination Date to
the Expiration Date, and the denominator of which is one hundred twenty
(120). "Landlord's Transaction Costs" shall be the aggregate amount of all
costs and expenses incurred by Landlord in entering into this Lease,
including, without limitation, the amount of the Plan Allowance and
Landlord's Contribution and all brokerage commissions and legal fees.
Landlord shall, upon written request of Tenant, promptly after Landlord's
Transaction Costs have been determined, advise Tenant of the amount
thereof. Promptly after the exercise of Tenant's right to reduce the size
of the Premises pursuant to this Section 10.28(b), the parties shall
execute and deliver an amendment to this Lease confirming the location of
the Give-Back Premises and making any changes to the terms and provisions
of this Lease required as a result of the Give-Back Premises no longer
being part of the Premises (e.g., modification to Tenant's Proportionate
Share). If Tenant fails to timely exercise its right under this Section
10.28(b), Tenant shall have no right to reduce the size of the Premises
pursuant to this Section 10.28(b), time being of the essence in respect of
this Section 10.28(b).
(c) Notwithstanding anything to the contrary herein contained, Tenant shall
have no right to reduce the size of the Premises pursuant to Section
10.28(a) or 10.28(b) if Tenant shall have previously leased other space on
the sixth (6th) floor of the Building pursuant to Section 10.27 above.
10.29 Storage Premises. Landlord hereby demises and leases to Tenant and
Tenant hereby hires and takes from Landlord storage premises ("Storage
Premises") containing approximately 6,145 square feet of usable area. The
Storage Premises are located in the lower level of the Building and are
substantially as shown on Exhibit E hereto. Said demise of the Storage
Premises shall be upon all of the same terms and conditions of this Lease
except:
(1) The Term Commencement Date in respect of the Storage Premises shall be
the Term Commencement Date in respect of the original Premises demised to
Tenant under this Lease.
(2) The Base Rent payable in respect of the Storage Premises shall be $9.00
per usable square foot of the Storage Premises per year for the first five
(5) years of the Term, and $10.00 per usable square foot of the Storage
Premises per year for the remainder of the initial Term. The Base Rent
payable in respect of the Storage Premises during any extended term shall
be based upon the fair market rental value of the Storage Premises as of
the commencement date of such extended term, as determined by Landlord.
(3) The Storage Premises shall be leased by Tenant "as-is", in the
condition in which the Storage Premises are in as of the Term Commencement
Date in respect of the Storage Premises, without any obligation on the part
of Landlord to prepare or construct the Storage Premises for Tenant or to
provide any allowance or contribution with respect thereto. Notwithstanding
the foregoing, Landlord shall, at its expense, (a) deliver the Storage
Premises in broom-clean condition, (b) touch-up the interior walls of the
Storage Premises with paint, as needed, and (c) if not previously
installed, install demising partitions to separate the Storage Premises
from the remainder of the space on the lower level of the Building.
(4) Tenant shall have no obligation to make payments on account of
Operating Costs or Landlord's Tax Expense in respect of the Storage
Premises.
(5) Landlord shall have no obligation to provide any services to the
Storage Premises other than heat and air conditioning appropriate for
storage space (which Tenant acknowledges may be at a level below the
specifications set forth in paragraph 1(a) of Exhibit B hereto) and
electricity for the electric lighting fixture in the Storage Premises.
(6) Tenant shall have no right to additional parking spaces or passes by
reason of the demise of the Storage Premises.
(7) Tenant shall use the Storage Premises for storage purposes in
connection with its use of the Premises demised under this Lease and for no
other purposes whatsoever.
10.30 Antenna Installation. Subject to the following provisions of this
Section 10.30, Landlord grants Tenant the right, in common with Landlord
and other tenants, to install, operate and maintain, at Tenant's expense
and risk, a lawfully permitted antenna(e), satellite dish and associated
equipment (the "Antenna Equipment") required for the proper conduct of
Tenant's business in the Premises at a location on the roof of the Building
mutually acceptable to Landlord and Tenant (the "Antenna Premises"):
(a) Tenant shall submit to Landlord, for its approval, a full set of
engineering plans and specifications for the proposed Antenna Equipment
installation. The installation of the proposed Antenna Equipment shall be
designed so as to be removable without damage to the roof of the Building.
The parties hereby acknowledge and agree, by way of illustration and not
limitation, that Landlord shall have the right to withhold its approval of
Tenant's plans and specifications hereunder, and shall not be deemed to be
unreasonable in doing so, if Tenant's intended placement or method of
installation or operation of the Antenna Equipment (i) may subject other
then existing licensees, tenants or occupants of the Building, or other
surrounding or neighboring landowners or their then existing occupants, to
signal interference, Tenant hereby acknowledging that a shield may be
required in order to prevent such interference, (ii) does not minimize to
the fullest extent practicable the obstruction of the views from the
windows of the Building or such adjoining building that are adjacent to the
Antenna Equipment, if any, (iii) does not complement (in Landlord's sole
judgment, which shall not, however, require Tenant to incur unreasonable
expense) the design and finish of the Building, (iv) may damage the
structural integrity of the Building or the roof thereof, or (v) may
constitute a violation of any consent, approval, permit or authorization
necessary for the lawful installation of the Antenna Equipment.
(b) Tenant shall make all required conduit or cable connections between
Tenant's equipment in the Premises and the Antenna Equipment utilizing
Building services, subject to (i) Tenant's payment of reasonable costs for
such services, and (ii) approval of such connections by Landlord.
(c) Any Antenna Equipment installed by Tenant shall not interfere with the
operation of any previously erected antenna(e), satellite dish(es) or the
like.
(d) Tenant shall obtain and maintain (and submit copies to Landlord of) all
necessary municipal, state and federal permits and authorizations required
to install, maintain, use and operate the Antenna Equipment and shall pay
any charges levied by government agencies which are the result of Tenant
having the Antenna Equipment. Landlord agrees to fully cooperate with
Tenant in obtaining all such permits and authorizations, at no cost or
expense to Landlord.
(e) Tenant agrees to maintain the Antenna Equipment and Antenna Premises in
a good state of repair and to save Landlord and its agents and employees
harmless from any claims, liability, loss, damage or expenses resulting
from the erection, maintenance, existence, operation, use or removal of the
Antenna Equipment, except to the extent such claims, liability, loss,
damage or expenses are due to the negligence or willful misconduct of
Landlord or its agents, employees or contractors.
(f) At the conclusion of the Term, Tenant shall remove the Antenna
Equipment and surrender the Antenna Premises to Landlord in the same
condition as delivered to Tenant, except for loss or damage resulting from
casualty, condemnation, act of God or ordinary wear and tear.
(g) The liability and property insurance to be carried by Tenant pursuant
to the provisions of this Lease shall include coverage for Tenant's
activity on the Antenna Premises and the Antenna Equipment.
(h) Notwithstanding anything to the contrary contained in this Section
10.30, if Landlord, in its sole judgment, determines that the presence of
the Antenna Equipment creates or poses a health risk or other danger to
persons or property, Landlord shall have the right to require Tenant to
remove the Antenna Equipment from the roof of the Building by giving
written notice to Tenant. Upon the giving of such notice, Tenant shall
remove the Antenna Equipment from the roof of the Building and surrender
the Antenna Premises to Landlord in the condition required by clause (f)
above.
(i) The frequency and transmission power at which the Antenna Equipment
shall operate shall be subject to Landlord's prior written approval and may
not be changed or modified at any time.
(j) Except for electricity, Landlord shall have no obligation to provide
any services to the Antenna Premises. Any services required by Tenant in
connection with Tenant's use of the Antenna Premises or the Antenna
Equipment shall be installed by Tenant, at Tenant's expense, subject to
Landlord's prior approval. Without limiting the foregoing, Tenant shall, at
its expense, submeter the Antenna Premises and pay for all electricity so
submetered and subsequently billed by Landlord.
(k) Tenant shall have no right to make any changes, alterations or other
improvements to the Antenna Premises or to the Antenna Equipment without
Landlord's prior written consent, except for routine maintenance.
(l) Landlord shall provide Tenant with 24-hour access to the Antenna
Premises, subject to Landlord's reasonable security procedures and
restrictions based on emergency conditions and to force majeure. Tenant
shall give Landlord reasonable advance written notice of the need for
access to the Antenna Premises (except that such notice may be oral in an
emergency), and a representative of Landlord must be present during any
entry by Tenant onto the Antenna Premises. Each notice for access shall
either (as the case may be) (A) state the date access is needed and that
routine maintenance is to be performed, or (B) if other than routine
maintenance is to be performed, describe, as applicable, the date access is
needed, the name of the contractor or other personnel requiring access, the
areas to which access is required, the common areas (if any) of the
Building to be impacted (risers, electrical rooms, etc.) and evidence of
Landlord's approval of any work to be done in the Antenna Premises, if and
to the extent such consent is required. In the event of an emergency, such
notice shall follow within five (5) days after access to the Antenna
Premises.
(m) Tenant shall be responsible for the cost of repairing any damage to the
roof of the Building caused by the installation, maintenance or removal of
the Antenna Equipment by or on behalf of Tenant.
(n) Tenant shall have no right to sublet the Antenna Premises.
(o) Except for Tenant, no person, firm or entity (including, without
limitation, other tenants, licensees or occupants of the Building) shall
have the right to benefit from the services provided by the Antenna
Equipment.
(p) In the event that Landlord performs repairs to or replacement of the
roof, and the removal of the Antenna Equipment is necessary to effect such
repair or replacement, Tenant shall, at Tenant's cost, remove the Antenna
Equipment until such time as Landlord has completed such repairs or
replacement.
(q) Tenant shall take the Antenna Premises "as-is" without any obligation
of Landlord to prepare or construct the same for Tenant's use or to provide
any allowance or contribution with respect thereto.
(r) Tenant shall comply with all applicable laws, ordinances and
regulations relating to Tenant's use, maintenance and operation of the
Antenna Premises and the Antenna Equipment.
(s) Landlord shall have the right, upon at least thirty (30) days notice to
Tenant, to require Tenant to relocate the Antenna Premises to another area
("Relocation Antenna Premises") on the roof of the Building suitable for
the use of the Antenna Equipment. In such event, Tenant shall, at
Landlord's sole cost and expense, on or before the date set forth in
Landlord's notice, relocate all of its Antenna Equipment from the Antenna
Premises to the Relocation Antenna Premises.
(t) Tenant's use of the Antenna Premises shall otherwise be upon and
subject to the terms and provisions of this Lease, except to the extent
inconsistent with the state of facts contemplated by the use of the Antenna
Premises. Without limiting the foregoing, Tenant shall have no obligation
to pay rent for its use of the Antenna Premises.
10.31 Exterior Signage.
(a) Tenant shall have the right, at its sole cost and expense, to provide
and install two (2) signs bearing Tenant's name and/or logo on the exterior
of the Building below the roof-line thereof. The size, design and location
of such signs shall be subject to the prior written consent of Landlord,
and Tenant agrees to obtain and present to Landlord, prior to the
installation thereof, any and all permits and approvals required by
regulatory authorities having jurisdiction with respect to such signs.
Landlord agrees to reasonably cooperate with Tenant to obtain such permits
and approvals, but at no cost to Landlord. Tenant shall, at its expense,
maintain such signs in good order and condition throughout the Term of this
Lease (Tenant hereby assuming all risk and liability with respect thereto)
and remove such signs upon the expiration or sooner termination of the Term
of this Lease and restore the facade(s) of the Building to the condition
existing prior to the installation thereof. For so long as this Lease is in
full force and effect, Landlord agrees not to permit the installation of a
sign on the exterior of the Building at a height parallel to or above the
location of Tenant's exterior signs. Provided that The Lincoln National
Life Insurance Company, itself, or an Affiliated Entity is occupying at
least fifty percent (50%) of the Building and is not in default under this
Lease, Landlord agrees not to permit the installation of a sign on the
exterior of the Building which is proportionately larger (based upon the
amount of space occupied by the tenant in question as compared to the
amount of space occupied by Tenant and the size of Tenant's signs) than any
of Tenant's exterior signs.
(b) Landlord shall, at its expense, install a monument sign (of a size and
design determined by Landlord in its sole discretion) at the entrance to
the Property and shall install Tenant's name (but not logo) in a prominent
position on such sign. Tenant shall, within thirty (30) days of billing
therefor, reimburse Landlord for the costs and expenses to obtain and
install Tenant's name on such sign.
10.32 Food Service Facility. Landlord shall operate, or cause to be
operated, throughout the Term of this Lease a full-service food service
facility (which shall include capacity for seating of at least 150 persons)
serving the tenants of the Building. The hours of operation of such food
service facility shall be at least 7:00 a.m. to 9:00 a.m. and 11:00 a.m. to
2:00 p.m., Monday through Friday, legal holidays excepted. Tenant agrees
that the Premises shall not contain a food service facility in any form,
except for a reasonable number of vending machines serving products
reasonably acceptable to Landlord.
10.33 Exercise Facility. Landlord shall operate, or cause to be operated,
throughout the Term of this Lease an exercise facility (which may or may
not be staffed, at Landlord's sole election) for use by employees of all
tenants of the Building containing exercise equipment, men's and women's
showers and locker facilities. Notwithstanding the foregoing, such exercise
facility shall be available for use on a temporary basis by visiting
employees of Tenant's affiliates. Employees of Tenant and its affiliates
shall not be separately charged for the use of such exercise facility. Such
exercise facility shall be available for use by employees of Tenant and its
affiliates during Normal Building Operating Hours, legal holidays excepted.
As a condition to the use of such exercise facility, each employee shall be
required to execute and deliver to the Building management office prior to
the first such use the Metro Center Fitness Club Usage Agreement in the
form attached hereto as Exhibit F.
10.34 Temporary Premises. Tenant desires to lease temporary premises in the
Building until the Term Commencement Date of this Lease. Therefore,
Landlord hereby demises and leases to Tenant, and Tenant hereby hires and
takes from Landlord, the Temporary Premises, as hereinafter defined. The
demise of the Temporary Premises shall be upon the terms and conditions
hereinafter set forth.
(a) The "Temporary Premises" shall be comprised of up to a full floor of
the Building (other than any floor which is a part of the Premises) as
designated by Landlord, but subject to change by Landlord from time to
time.
(b) The demise of the Temporary Premises shall be upon all of the same
terms and conditions of this Lease, except as follows:
(1) The Term Commencement Date in respect of the Temporary Premises shall
be the date on which this Lease has been fully executed and delivered by
Landlord and Tenant.
(2) The Term of this Lease in respect of the Temporary Premises shall
expire on the day immediately preceding the Term Commencement Date of this
Lease (the "Temporary Premises Termination Date").
(3) The Temporary Premises shall be leased by Tenant "as-is", in the
condition in which the Temporary Premises are in as of the Term
Commencement Date in respect of the Temporary Premises, without any
obligation on the part of Landlord to prepare or construct the Temporary
Premises for Tenant or to provide any allowance or contribution with
respect thereto.
(4) Tenant shall have no obligation to pay Base Rent or to make any
payments on account of Operating Costs or Landlord's Tax Expense in respect
of the Temporary Premises.
(5) Landlord shall have no obligation to provide any services to the
Temporary Premises.
(6) Tenant shall have no right to additional parking spaces or passes by
reason of the demise of the Temporary Premises.
(7) Tenant shall use the Temporary Premises for oversight of construction,
employee orientation, interviews or any other use permitted by law and
approved by Landlord.
(c) As of the Temporary Premises Termination Date, Tenant shall vacate the
Temporary Premises and deliver the Temporary Premises to Landlord in the
condition in which the Temporary Premises were delivered to Tenant.
10.35 Testing of Building HVAC System. Within a reasonable period of time
after the execution and delivery of this Lease and prior to the
commencement of Landlord's Work, Landlord shall cause an environmental
consulting firm reasonably satisfactory to Tenant to test the indoor air on
each floor of the Premises to determine whether elevated levels of fungus
or mold are emanating from the Building HVAC system. Air samples shall also
be collected from outside of the Building as a control. If, in the
reasonable opinion of a certified industrial hygienist employed by said
consulting firm (the "CIH"), such testing indicates that no response
actions related to elevated levels of mold or fungus emanating from the
Building HVAC system are necessary, Landlord shall be deemed to have
satisfied its obligations under this Section 10.35 and Tenant shall
reimburse Landlord for the costs and expenses incurred by Landlord in
performing such testing within thirty (30) days after receipt of an invoice
from Landlord therefor. If, in the reasonable opinion of the CIH, such
testing indicates that response actions are necessary in order to address
elevated levels of fungus or mold emanating from the Building HVAC system,
Landlord shall pay for such testing and shall use reasonable efforts to
eliminate such elevated mold and/or fungus emissions. Tenant acknowledges
and agrees that Xxxxx Associates, Inc. is an acceptable environmental
consulting firm.
Submission of this instrument for examination or signature does not
constitute a reservation of or option to lease, and it is not effective as
a lease or otherwise until execution and delivery by both Landlord and
Tenant.
This Lease contains all of the agreements of the parties with respect to
the subject matter thereof and supersedes all prior dealings between them
with respect to such subject matters.
No representations, inducements, promises or agreements, oral or otherwise,
between Landlord and Tenant or any of their respective brokers, employees
or agents, not embodied herein, shall be of any force or effect.
IN WITNESS THEREOF the parties hereto have set their hands and seals in
multiple counterpart copies, each of which counterpart copy shall be deemed
an original for all purposes, as of the date and year first above written.
LANDLORD: NORTHLAND METRO PORTFOLIO LIMITED PARTNERSHIP
BY: Northland Metro Partners Limited Partnership,
its General Partner
BY: Northland Metro Partners Incorporated,
its General Partner
BY:
Name:
Title:
TENANT: THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
BY:
Name:
Title:
EXHIBIT A
PLAN OF PREMISES
EXHIBIT B
LANDLORD SERVICES
1) Heating, Ventilating and Air Conditioning
a) Landlord will furnish the foregoing as required to provide comfortable
temperatures in compliance with applicable codes and ordinances, government
or quasi-governmental regulations, during Normal Building Operating Hours
and on Saturdays from 8:00 a.m. to 1:00 p.m. (collectively, "Standard HVAC
Hours"). "Comfortable temperatures" shall mean a maximum inside temperature
of 76 F, provided the outside temperature is no more than 88 F dry bulb/72
F wet bulb, and a minimum inside temperature of 72 F, provided the outside
temperature is no less than 6 F dry bulb. Landlord will maintain the base
Building heating, ventilating and air conditioning equipment, the cost of
which shall be billed to tenants pursuant to Article III hereof.
b) The air conditioning system is designed to provide cooling for normal
office occupancy, one person per 208 square feet, and normal office
equipment comprising a combined lighting and standard electrical load not
to exceed 6 xxxxx per square foot. If special occupancy requirements or
special equipment require additional cooling or if Tenant otherwise exceeds
those conditions or introduces onto the Premises equipment which overloads
the systems and/or in any other way causes the systems not adequately to
perform their proper functions, then at Landlord's option reasonable
supplementary or alternative systems may be installed by Landlord and the
acquisition, installation, maintenance and operating cost of such equipment
will be at Tenant's expense.
c) Tenant may request heating and/or air conditioning during other periods
in addition to Standard HVAC Hours by submitting its request in writing to
the Building Manager's office no later than 2:00 p.m. the preceding workday
(Monday through Friday) on forms available from the Building Manager. The
request shall clearly state the start and stop hours of the "off-hour"
service. Tenant shall submit to the Building Manager a list of personnel
who are authorized to make such requests. Charges are to be determined by
the Building Manager on the additional hours of operations and shall be
fair and reasonable and reflect the additional operating costs involved
without profit to Landlord.
2) Electrical Service
Landlord shall furnish electricity service to the Premises in accordance
with Section 10.23 of the Lease.
3) Water
Landlord shall furnish water for ordinary cleaning, toilet, lavatory and
drinking purposes only. If Tenant requires, uses or consumes water for any
purpose other than the aforesaid, Landlord may (i) assess a reasonable
charge for the additional water so used or consumed by Tenant, or (ii)
install a water meter at Tenant's expense and thereby measure Tenant's
water consumption for all purposes. In the latter event, Tenant agrees to
pay for water consumed, as shown on said meter, together with the sewer
charge based on said meter charges, as and when bills are rendered.
4) Elevator
There shall be an elevator for the use of all tenants and the general
public for access to and from all floors of the Building.
5) Relamping of Light Fixtures
Landlord shall replace all lamps, ballasts and starters within the Premises
upon Tenant's request from time to time, the cost of which shall be
reimbursed by Tenant to Landlord upon Landlord's request therefor from time
to time.
6) Office Cleaning and Janitorial Service
Office cleaning and janitorial service in accordance with the Cleaning
Specifications attached hereto as Exhibit B-1.
7) Security
Landlord shall provide security for the Building similar to the security
provided in other first-class office buildings in downtown Hartford,
although Landlord makes no representation, warranty or guaranty of the
efficacy of its efforts in this regard.
8) Parking Attendant
Landlord shall cause a parking attendant to be located in the Garage.
EXHIBIT B-1
CLEANING SPECIFICATIONS FOR
METRO CENTER, 000 XXXXXX XXXXXX, XXXXXXXX, XX
FREQUENCY: Five nights per week, Monday through Friday, between the hours
of 5:30 p.m. and 9:30 p.m., excluding holidays.
GENERAL OFFICE AREA
DAILY:
1. Spot vacuum all traffic lanes and obviously soiled carpeted surfaces.
2. Inspect carpet for spots and stains, removing where possible.
3. Dust mop or sweep hard surface floor areas thoroughly.
4. Dust all horizontal surfaces of desks, chairs, tables and office
equipment.
5. Dust all exposed filing cabinets, bookcases and shelves.
6. Dust to hand height all horizontal surfaces of equipment, ledges,
xxxxx, shelves, radiators, frames, and partitions.
7. Dust all telephones.
8. Empty all waste receptacles and remove trash to handling area.
9. Clean and sanitize all drinking fountains.
10. Turn out lights and lock tenant building doors.
WEEKLY:
1. Vacuum clean all exposed carpeting including difficult areas such as
under desks, tables, counters. 2. Replace plastic liners in
wastebaskets.
3. Wash glass in tenant doors, sidelights and interior partitions.
4. Damp mop and spray buff floors.
5. Spot clean by damp wiping fingerprints, smears and smudges on walls,
doors, frames, kick and push plates, handles, light switches and glass
surfaces.
MONTHLY:
1. Dust vertical blinds.
2. Detail vacuum corners and edges.
3. Vacuum all fabric office furniture, including chairs and couches.
QUARTERLY:
1. Dust above hand height all horizontal surfaces including shelving,
moldings, ledges, partitions, pipes, etc.
2. Vacuum clean or dust all air-conditioning and heating grilles.
SEMI ANNUALLY:
1. Machine strip clean and refinish all floor surfaces as required but
not less than once per year.
2. Damp wipe and clean light fixtures.
LOBBY AND COMMON AREAS
DAILY:
1. Dust walls up to normal reach in lobby.
2. Spot clean by damp wiping fingerprints, smears and smudges on walls,
doors, frames, kick and push plates, handles, light switches, glass
surfaces, directory and tenant signage and elevator call buttons, etc.
3. Vacuum clean all carpeting and inspect for spots and stains, removing
where possible.
4. Sweep and police all exterior plaza and sidewalk areas.
5. Clean all lobby glass, including revolving door.
QUARTERLY:
1. Dust walls from ceiling to floor.
2. Vacuum all fabric-covered walls.
RESTROOMS
DAILY:
1. Clean and polish all chrome fittings and brightwork, including
shelves, flushometers and metal dispensers.
2. Clean and sanitize both sides of every toilet seat with a germicidal
solution.
3. Clean, sanitize and polish all vitreous fixtures, including toilet
bowls, urinals and sinks, using a germicidal detergent solution.
4. Clean and polish all mirrors and glass.
5. Dust and spot clean all toilet partitions, tile walls, dispensers and
receptacles.
6. Empty all disposal receptacles, inserting liners as needed.
7. Refill all dispensers, including napkin, soap, tissue, towels, cups,
liners, etc.
8. Remove spots, stains and splashes from wall areas.
9. Wash and rinse all floors thoroughly, using a germicidal detergent
solution.
10. Spot clean by damp wiping fingerprints, smears and smudges on walls,
doors, frames, kick and push plates, handles, light switches and glass
surfaces.
MONTHLY:
1. Wash and sanitize all partitions, tile walls and enamel surfaces.
2. Dust or vacuum clean all heating and air-conditioning ceiling vents.
QUARTERLY:
1. Machine scrub and rinse all floor surfaces.
STAIRWELLS
DAILY:
1. Spot clean by damp wiping fingerprints, smears, and smudges on walls,
doors, frames, kick and push plates, and handles.
MONTHLY:
1. Vacuum and/or dry mop using a chemically treated dry mop all
stairwells.
2. Dust all handrails.
ELEVATORS
DAILY:
1. Sweep or vacuum floors.
2. Inspect carpet for spots and stains, removing where possible.
3. Clean elevator tracks.
4. Clean walls and polish brightwork.
5. Wipe down all surfaces in freight elevator.
MONTHLY:
1. Wash light fixtures.
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or used
for any purpose other than for ingress to and egress from the Premises and
for delivery of merchandise and equipment in a prompt and efficient manner,
using elevators and passageways designated for such delivery by Landlord.
There shall not be used in any space, or in public hall of the Building,
either by any Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No Tenant shall sweep or throw or permit to be swept or thrown from the
Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the Building, and
Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having
business therein, nor shall any animals, other than seeing eye dogs, be
kept in or about the Building. Smoking or carrying lighted cigars or
cigarettes in the Building is prohibited.
4. No awnings, antennae, or other projections shall be attached to the outside
walls of the Building.
5. No curtains, blinds, shades, or screens other than those furnished by
Landlord shall be attached to, hung in or used in connection with any window or
door of the Premises without the prior written consent of Landlord.
6. No advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of
the Premises or the Building or on the inside of the Premises if the same
is visible from the outside of the Premises without the prior written
consent of Landlord, except that the name of Tenant may appear on the
entrance door of the Premises. In the event of the violation of the
foregoing by any Tenant, Landlord may remove same without any liability,
and may charge the expense incurred by such removal to Tenant or Tenants
violating this rule. Interior signs on doors and directory tablet shall be
inscribed, painted or affixed for each Tenant by Landlord at the expense of
such Tenant, and shall be of a size, color and style acceptable to
Landlord.
7. No Tenant shall xxxx, paint, drill into, or in any way deface any part
of the Premises or the Building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. No Tenant shall
lay linoleum, or other similar floor covering, so that the same shall come
in direct contact with the floor of the Premises, and, if linoleum or other
similar floor covering is desired to be used in interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use of cement or other similar adhesive
material being expressly prohibited.
8. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his tenancy,
restore to Landlord all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Landlord the cost
thereof.
9. Freight, furniture, business equipment, safes, merchandise and bulky matter
of any description shall be delivered to and removed from the Premises only on
the freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Landlord. Landlord reserves the right
to inspect all freight to be brought into the Building and to exclude from the
Building all freight which violates any of these Rules and Regulations of the
Lease of which these Rules and Regulations are a part.
10. Canvassing, soliciting and peddling in the Building is prohibited and each
Tenant shall cooperate to prevent the same.
11. Landlord shall have the right to prohibit any advertising by any Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as Building for offices, and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising. 12. Tenant shall not
bring or permit to be brought or kept in or on the Premises, any flammable,
combustible or explosive fluid, material, chemical or substance or cause or
permit any odors of cooking or other processes, or any unusual or other
objectionable odors to permeate in or emanate from the Premises. Without
limiting the foregoing, Tenant shall not permit any cooking within the Premises,
except that a coffee bar and microwave may be used by Tenant's employees in the
Premises.
13. Tenant shall comply with all security measures from time to time established
by Landlord for the Building.
14. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and any other means
of entry to the Premises closed and secured.
15. Tenant shall comply with all applicable federal, state and municipal laws,
ordinances and regulations and Building rules and shall not, directly or
indirectly, make any use of the Premises which may be prohibited by any thereof
or which shall be dangerous to person or property or shall increase the cost of
insurance or require additional insurance coverage.
16. Tenant shall not waste electricity, water, heat or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air conditioning, and shall refrain from
attempting to adjust any controls other than room thermostats installed for
Tenant's use.
17. Tenant shall not install and operate machinery or any mechanical devices of
a nature not directly related to Tenant's ordinary use of the Premises without
the written permission of Landlord.
18. No person or contractor not employed or approved by Landlord shall be used
to perform window washing, cleaning, repair or other work in the Premises.
19. No vending machines other than those furnished by the Landlord are to be
placed in any hallways or Building common areas.
20. No parking in front of the main entrance of the Building is permitted.
21. Tenant shall comply with the Building's recycling program, as the same may
be established or changed by Landlord from time to time.
EXHIBIT D
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT is made
as of this day of , 1998, by and among NOMURA ASSET CAPITAL
----- ------------
CORPORATION, a Delaware corporation, (together with its successors and assigns,
"Mortgagee"), THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, an Indiana
corporation ("Tenant"), and NORTHLAND METRO PORTFOLIO LIMITED PARTNERSHIP, a
Massachusetts limited partnership ("Landlord").
RECITALS
A. Landlord is the owner of those certain premises commonly known as
Metro Center, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx, more particularly
described in Exhibit A attached hereto as (the "Real Estate");
B. Mortgagee is now or will be the owner and holder of a note (the
"Note") evidencing a loan (the "Loan") made by Mortgagee to Landlord, and a
mortgage (the "Mortgage")securing the Loan, in each case executed by
Landlord to Mortgagee;
C. The Mortgage constitutes or will constitute a first lien upon,
among other things, the Real Estate and the current and future improvements
(the "Improvements") situated thereon (collectively, the "Property");
D. Under the terms of a certain Lease (the "Lease") dated on or about
the date hereof, Landlord leased to Tenant the Real Estate and the
Improvements, or a portion thereof, as more particularly described in the
Lease; and
E. The parties are entering into this Agreement as a condition of
Mortgagee's agreement to make the Loan evidenced by the Note.
AGREEMENTS
1. Subordination. The Lease is and at all times shall be subordinate
to the Mortgage and to all substitutions, renewals, modifications and
amendments of and to the Mortgage (including, without limitation, any of
the foregoing which increase the indebtedness secured thereby).
2. Non-Disturbance. In the event of foreclosure of the Mortgage (by
judicial process, power of sale or otherwise) or conveyance in lieu of
foreclosure, which foreclosure, power of sale, or conveyance occurs prior
to the expiration date of the Lease, including any extensions and renewals
of the lease now provided thereunder, and so long as Tenant is not in
default under any of the terms, covenants and conditions of the lease
beyond any applicable grace or cure period, Mortgagee agrees on behalf of
itself, its successors and assigns, and on behalf of any purchaser at such
foreclosure ("Purchaser") that Tenant shall not be disturbed in the quiet
and peaceful possession of the premises demised under the Lease, subject to
the terms and conditions of the Lease.
3. Attornment. In the event of foreclosure of or other execution on
the Mortgage or conveyance in lieu of foreclosure, which foreclosure,
execution or conveyance occurs prior to the expiration date of the Lease,
including any extensions and renewals of the lease now provided thereunder,
Tenant shall attorn to Mortgagee or Purchaser and recognize Mortgagee or
Purchaser as Tenant's landlord under the Lease, and so long as Tenant is
not in default under any of the terms, covenants and conditions of the
Lease beyond any applicable grace or cure period, Mortgagee or Purchaser
shall recognize and accept Tenant as its tenant thereunder, whereupon the
Lease shall continue, without further agreement, in full force and effect
as a direct lease between Mortgagee or Purchaser and Tenant for the
remaining term thereof, together with all extensions and renewals now
provided thereunder, upon the same terms, covenants and conditions as
therein provided, and Mortgagee or Purchaser shall thereafter assume and
perform all of Landlord's subsequent obligations, as landlord under the
Lease, and Tenant shall thereafter make all rent payments directly to
either Mortgagee or Purchaser, as the case may be, subject to the
limitations contained in Section 4 and Section 8 below.
4. Limitation of Liability. Notwithstanding anything to the contrary
contained herein or in the Lease, in the event of foreclosure of or other
execution on the Mortgage (by judicial process, power of sale or otherwise)
or conveyance in lieu of foreclosure, which foreclosure, power of sale or
conveyance occurs prior to the expiration date of the Lease, including any
extensions and renewals of the Lease now provided thereunder, the liability
of Mortgagee or Purchaser, as the case may be, shall be limited as set
forth below in Section 8 below, provided, however, that Mortgagee or
Purchaser, as the case may be, shall in no event or to any extent:
(a) be liable to Tenant for any past act, omission or default on the
part of the original or any other landlord under the Lease and Tenant shall
have no right to assert the same or any damages arising therefrom as an
offset, claim, defense or deficiency against Mortgagee, Purchaser, or the
successors or assigns of any of them; provided, however, that if notice of
such act, omission or default is given to Mortgagee and Mortgagee or any
Purchaser succeeds to the interest of Landlord under the Lease, then
Mortgagee or such Purchaser shall be subject to any abatement or offset
right to which Tenant may be entitled under the Lease on account of such
act, omission or default;
(b) be liable to Tenant for any payment of rent more than thirty (30)
days in advance or any deposit, rental security or any other sums deposited
with the original or any other landlord under the Lease and not delivered
to Mortgagee;
(c) be bound by any cancellation, surrender, amendment or modification
of the Lease entered into by Tenant unless:
(i) Tenant is allowed to take such action as a matter of right under
the Lease;
(ii) Such action does not affect the monetary obligations of the Tenant
with respect to the Property; or
(iii) Mortgagee provides its prior written consent to such action, which
consent shall not be unreasonably withheld or delayed.
(d) be liable to Tenant for construction, or delays in construction, of
the Improvements or the portion thereof leased to Tenant; or
(e) be bound by any option or right of first refusal to purchase the
Real Estate granted to Tenant under the Lease.
5. Further Documents. The foregoing provisions shall be self-
operative and effective without the execution of any further instruments on
the part of any party hereto. Each party agrees, however, to execute and
deliver to the other or to any person to whom Tenant herein agrees to
attorn such other instruments as either shall reasonably request in order
to confirm said provisions.
6. Notice and Cure. Tenant agrees that if there occurs a default by
Landlord under the Lease:
(a) Tenant shall use best efforts to give a copy of each default notice
given to Landlord pursuant to the Lease to Mortgagee; and
(b) Mortgagee shall have the right, but not the obligation, to cure the
default within the time prescribed by the Lease or, if such default cannot
reasonably be cured within that time, then such additional time not to
exceed forty-five (45) days as may be necessary if Mortgagee shall have
commenced and shall be diligently pursuing the remedies necessary to cure
such default.
7. Notices. All notices, demands and requests given or required to be
given hereunder shall be in writing and shall be deemed to have been
properly given when personally served or if sent by U. S. registered or
certified mail, postage prepaid, addressed as follows:
Mortgagee: Nomura Asset Capital Corporation
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Tenant: The Lincoln National Life Insurance Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Vice President
Financial Reporting & Pricing
Landlord: c/o Northland Investment Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
8. Limitation of Personal Liability. At any time before or after
Mortgagee or Purchaser succeeds to the interest of Landlord, Tenant agrees
to look only to such Mortgagee's or Purchaser's interest in the Property to
satisfy any of the respective obligations of Mortgagee or Purchaser to
Tenant.
9. Payment of Rent. Tenant hereby acknowledges that the Lease and
the rents and all other sums due thereunder have been assigned to Mortgagee
as security for the Loan evidenced by the Note and secured by the Mortgage.
If Mortgagee notifies Tenant of the occurrence of a default under the
Note, Mortgage or any other document, instrument or agreement evidencing or
securing the indebtedness and/or demands that Tenant pay rents and all
other sums due or to be become due under the Lease directly to Mortgagee,
Tenant shall pay rent and all other sums due under the Lease directly to
Mortgagee or as otherwise directed in writing by Mortgagee without the need
on the part of Mortgagee to document or otherwise establish any default.
Landlord hereby irrevocably authorizes and directs Tenant to make the
foregoing payments to Mortgagee upon such notice and demand without the
need to inquire of Landlord as to the validity of such notice or any
contrary notice or direction from Landlord and Landlord agrees not to seek
payment from Tenant of any such payments made to Mortgagee.
10. Binding Effect. The terms, covenants and conditions hereof shall
inure to the benefit of and be binding upon the parties hereto, and their
respective heirs, executors, administrators, successors and assigns.
11. Modification. This Agreement may not be modified orally or in a
manner other than by an agreement signed by the parties hereto or their
respective successors in interest.
12. Choice of Law. This Agreement shall be governed by the internal
law (and not the law of conflicts) of the State in which the Property is
located.
13. Counterparts. This Agreement may be executed in two or more
counterparts which, when taken together, shall constitute one and the same
original.
[Signatures commence on following page]
WITNESS the due execution of this instrument by the parties hereto the day
and year first above written. MORTGAGEE:
NOMURA ASSET CAPITAL CORPORATION, a Delaware corporation
Signed, sealed and delivered
in the presence of:
-----------------------------
----------------------------- By:
------------------------
Name:
Title:
TENANT:
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY,
an Indiana corporation
Signed, sealed and delivered
in the presence of:
-----------------------------
----------------------------- By:
------------------------
Name:
Title:
LANDLORD:
NORTHLAND METRO PORTFOLIO LIMITED
PARTNERSHIP, a Massachusetts limited
partnership
By: Northland Metro Partners Limited
Partnership, its General Partner
By: Northland Metro Partners
Incorporated, its General
Signed, sealed and delivered Partner
in the presence of:
-----------------------------
----------------------------- By:
------------------------
Name:
Title:
STATE OF )
------------
COUNTY OF )
-----------
The foregoing instrument was acknowledged before me this day of
------
, 1998 by , a
------------ -------------------------------------- ---------------
of Nomura Asset Capital Corporation, a Delaware corporation.
WITNESS my hand and official seal.
Signature (Seal)
--------------------------
Notary Public
My commission expires:
STATE OF )
------------
COUNTY OF )
-----------
The foregoing instrument was acknowledged before me this day of
------
, 1998 by , a
------------ --------------------------------------- --------------
of The Lincoln National Life Insurance Company, an Indiana corporation.
WITNESS my hand and official seal.
Signature (Seal)
--------------------------
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF )
-----------
The foregoing instrument was acknowledged before me this day of
------
, 1998 by , the
------------ ------------------------------------ --------------
of .
WITNESS my hand and official seal.
Signature (Seal)
--------------------------
Notary Public
My commission expires:
Record and Return to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxx, Esquire
EXHIBIT E
PLAN OF STORAGE PREMISES
EXHIBIT F
METRO CENTER FITNESS CLUB
USAGE AGREEMENT
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FIRST NAME MIDDLE NAME LAST NAME
__________________________________________________________________________
COMPANY NAME SUITE #
--------------------------------------------------------------------------
HOME PHONE WORK PHONE
IN AN EMERGENCY, PLEASE NOTIFY:
--------------------------------------------------------------------------
NAME WORK PHONE/HOME PHONE
The undersigned wishes to use the equipment and/or services of the Metro
Center Fitness Club. The undersigned understands that his/her application
is subject to review and approval of the Metro Center Fitness Club.
Usage may be immediately terminated or suspended by the building owner (the
"Owner") if the undersigned, in the judgment of the Owner, violated any
rules, regulations or policies of the Metro Center Fitness Club or if the
undersigned, or any guest of the undersigned, in the judgment of the Owner,
conducts himself/herself in a manner detrimental to the Owner or its
participants or in any manner that the Metro Center Fitness Club deems
inappropriate or disruptive.
As a participant, the undersigned agrees to conform to and be bound by the
rules, regulations and policies of the Metro Center Fitness Club, as they
may be amended from time to time.
HEALTH WARRANTY AND WAIVER OF LIABILITY The undersigned hereby represents
and warrants that he/she has consulted with a physician and has no
disability, impairment or ailment that will prevent him/her from safely
engaging in exercise or that will be detrimental or dangerous to his/her
health, safety or physical condition if he/she does participate in
exercising or the use of any of the facilities and services provided by the
Metro Center Fitness Club to the maximum extent provided by law. The
undersigned assumes any and all risks of injury, damage or property loss
associated with the use of the Metro Center Fitness Club's facilities and
equipment, and releases the Owner and its agents, employees and contractors
from any claims, damages or loss which arises as a result of any injury,
property loss or other damage sustained in or about the Metro Center
Fitness Club facilities.
The undersigned acknowledges that the Metro Center Fitness Club is an
unattended facility and assumes all risks arising from such fact.
The undersigned represents to the Owner that he/she is familiar with all
the equipment in the Metro Center Fitness Club and is experienced in the
safe and proper usage of said equipment.
Signature
----------------------------------------
Name:
Date
---------------------------------------------
METRO CENTER FITNESS CLUB
Rules and Policies
The following rules and policies are subject to change at any time. The Metro
Center Fitness Club shall have complete charge of its facilities at all time.
If you have questions or concerns, please contact the Management Office.
------------------------------------------------------------------------
The Metro Center Fitness Club shall not be held responsible or liable by any
participant for personal injury, damage or loss of property for any reason.
Anyone using the Club facilities does so at their own risk.
Participants must be at least eighteen (18) years of age.
A fitness consultation with your physician must be performed prior to Club
participation.
Free temporary lockers are available in the dressing rooms during club usage.
Any articles left in temporary lockers overnight will be removed by Management.
Wipe off equipment after use.
When using free weights, return to rack and bend knees when setting weights
down. (Do not drop weights.)
PARTICIPANTS ARE URGED TO AVOID BRINGING VALUABLES INTO CLUB PREMISES. THE
METRO CENTER FITNESS CLUB AND ITS OWNERS, AGENTS, EMPLOYEES AND CONTRACTORS
SHALL NOT BE LIABLE FOR THE LOSS OR THEFT OF, OR DAMAGE TO, THE PERSONAL
PROPERTY OF CLUB PARTICIPANTS.
Report damaged or loose machine parts to Management.
Report any incident or accident to Management immediately.
Pets are not allowed in the Club.
No smoking is permitted anywhere in the Club. No alcoholic beverages or
illegal substances of any kind may be brought into the Club. Violation of
this rule will result in immediate termination of usage.
No food is to be eaten in the Club.
Be considerate of others. Loud or abusive language will not be tolerated.
Personal radios anywhere in the Club are limited to headphone use.
Proper attire, including shoes and shirt, must be worn at all times.
Workout at a safe intensity level (not your neighbor's intensity level).
THE METRO CENTER FITNESS CLUB RESERVES THE RIGHT TO ESTABLISH AND CHANGE
HOURS OF OPERATION AND CLUB AVAILABILITY.
